          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Condemnation by the Redevelopment         :
Authority of Fayette County of Certain    :
Land In Brownsville Borough, Fayette      :
County, Pennsylvania,                     :
Being Property of:                        :
                                          :
Alpha Financial Mortgage, Inc., its       :
Successors, assigns, or any other person  :
or Entity found to have interest in the   :
property                                  :
                                          :      No. 1541 C.D. 2015
                    v.                    :
                                          :
Redevelopment Authority of                :
Fayette County                            :
                                          :
Appeal of: Alpha Financial Mortgage, Inc. :


In the Matter of:                            :
Condemnation by the Redevelopment            :
Authority of Fayette County of Certain       :
Land in Brownsville Borough, Fayette         :
County, Pennsylvania, Being Property of: :
Ernest E. Liggett and Marilyn Kostic Liggett :
                                             :   No. 2109 C.D. 2015
                   v.                        :
                                             :
Redevelopment Authority of                   :
Fayette County                               :
                                             :
Appeal of: Alpha Financial Mortgage, Inc., :
Ernest E. Liggett and Marilyn Kostic         :
Liggett, The Brownsville Group, Ltd.         :
and Manor Investments, Ltd.                  :
In the Matter of:                          :
                                           :
Condemnation by the Redevelopment          :
Authority of Fayette County of Certain     :
Land in Brownsville Borough, Fayette       :
County, Pennsylvania, Being Property of: :
                                           :
Brownsville Group, Ltd.                    :
                                           :   No. 2110 C.D. 2015
                   v.                      :
                                           :
Redevelopment Authority of                 :
Fayette County                             :
                                           :
Appeal of: Alpha Financial Mortgage, Inc., :
Ernest Liggett and Marilyn Kostik Liggett, :
The Brownsville Group, Ltd. and Manor      :
Investments, Ltd.                          :

In the Matter of: Condemnation by the      :
Redevelopment Authority of Fayette         :
County of Certain Land in Brownsville      :
Borough, Fayette County, Pennsylvania,     :
being property of:                         :
                                           :
Manor Investments, Ltd.                    :
                                           :   No. 2111 C.D. 2015
                   v.                      :
                                           :   Argued: April 11, 2016
Redevelopment Authority of                 :
Fayette County                             :
                                           :
Appeal of: Alpha Financial Mortgage, Inc., :
Ernest E. Liggett and Marilyn Kostik       :
Liggett, The Brownsville Group, Ltd. and :
Manor Investments, Ltd.                    :
BEFORE:      HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION BY
JUDGE McCULLOUGH                                     FILED: December 22, 2016

             Alpha Financial Mortgage, Inc., Ernest E. Liggett and Marilyn Kostik
Liggett, The Brownsville Group, Ltd., and Manor Investments, Ltd. (collectively,
Condemnees) appeal from the July 31, 2015 order of the Court of Common Pleas
of Fayette County (trial court) sustaining the preliminary objections of the
Redevelopment Authority of Fayette County (the Authority) to the Condemnees’
petitions for appointment of viewers.


                          Facts and Procedural History
             The underlying facts of this case are not in dispute. On June 3, 2009,
the Authority filed declarations of taking with respect to numerous properties
owned by Condemnees. The Authority submitted estimated just compensation
payments to Condemnees, with the first payments commencing on October 18,
2010, and the final payments made as of February 6, 2012. On April 21, 2014,
Condemnees filed separate petitions for appointment of viewers to ascertain just
compensation for their condemned properties. On April 25, 2014, the Authority
filed preliminary objections alleging that Condemnees’ petitions for appointment
of viewers were untimely filed and that Condemnees failed to name a necessary
party pursuant to section 502(a)(4) of the Eminent Domain Code, 26 Pa.C.S.
§502(a)(4). (Trial court op. at 1-2.)
             More specifically, the Authority alleged that, pursuant to section 19.2
of the Urban Redevelopment Law (URL), Act of May 24, 1945, P.L. 991, added
by the Act of October 2, 2002, P.L. 796, 35 P.S. §1719.2, Condemnees only had one
year from the last payment of estimated just compensation to bring an action
challenging the same. Section 19.2 states that:

             Notwithstanding the provisions of 42 Pa.C.S. §5526(4)
             (relating to five year limitation) or any other provision of
             law to the contrary, a proceeding to challenge just
             compensation or other damages if a redevelopment
             authority has exercised powers of condemnation pursuant to
             this act and made payment in accordance with section
             407(a) or (b) of the act of June 22, 1964 (Sp.Sess., P.L. 84,
             No. 6),[1] known as the “Eminent Domain Code,” is subject
             to a one-year statute of limitations.
35 P.S. §1719.2.       Regarding the necessary party, the Authority alleged that
Condemnees failed to identify and join Andilnod, Inc., which had recorded a praecipe
for lis pendens against Condemnees’ properties in relation to a separate matter before
the trial court. (Reproduced Record (R.R.) at 49a-51a.)


                                  Trial Court Opinion
             By opinion and order dated July 29, 2015, the trial court sustained the
Authority’s preliminary objections, finding that Condemnees’ petitions for
appointment of viewers were untimely filed. The trial court did not address the
Authority’s preliminary objection relating to failure to name a necessary party. The
trial court rejected Condemnees’ argument that the applicable statute of limitations
was six years under section 5527(a) of the Judicial Code, 42 Pa.C.S. §5527(a), and
that this section effectively superseded section 19.2 of the URL. Section 5527(a)
provides as follows:

      1
         Section 407 was repealed by the Act of May 4, 2006, P.L. 112, No. 34 (Act 34), and
replaced by section 307 of the Eminent Domain Code, 26 Pa.C.S. §307.


                                            2
             (i) If a condemnor has filed a declaration of taking, a
             petition for the appointment of viewers for the assessment
             of damages under 26 Pa.C.S. (relating to eminent domain)
             must be filed within six years from the date on which the
             condemnor first made payment in accordance with 26
             Pa.C.S. § 307(a) or (b) (relating to possession, right of entry
             and payment of compensation).

             (ii) If payment is not required to be made under 26 Pa.C.S.
             § 307(a) to obtain possession, a petition for the appointment
             of viewers must be filed within six years of the filing of the
             declaration of taking.

                    (2) If the condemnor has not filed a declaration
                    of taking, a petition for the appointment of
                    viewers for the assessment of damages under
                    26 Pa.C.S. must be filed within six years from
                    the date on which the asserted taking, injury or
                    destruction of the property occurred or could
                    reasonably have been discovered by the
                    condemnee.
42 Pa.C.S. §5527(a)(i)-(ii), (2).
             The trial court first noted that Condemnees do not point to any statutory
text or legislative history evidencing an intent to repeal section 19.2 of the URL. The
trial court stated that Condemnees were attempting to argue an implied appeal of this
section, which the trial court noted is governed by section 1971 of the Statutory
Construction Act of 1972, 1 Pa.C.S. §1971. This section provides as follows:

             (a) Revision or exclusive system covering entire subject. --

             Whenever a statute purports to be a revision of all statutes
             upon a particular subject, or sets up a general or exclusive
             system covering the entire subject matter of a former statute
             and is intended as a substitute for such former statute, such
             statute shall be construed to supply and therefore to repeal
             all former statutes upon the same subject.


                                           3
             (b) Uniform mandatory system covering class of subjects.--

             Whenever a general statute purports to establish a uniform
             and mandatory system covering a class of subjects, such
             statute shall be construed to supply and therefore to repeal
             pre-existing local or special statutes on the same class of
             subjects.

             (c) Other cases. –

             In all other cases, a later statute shall not be construed to
             supply or repeal an earlier statute unless the two statutes are
             irreconcilable.
1 Pa.C.S. §1971(a)-(c).
             The trial court rejected Condemnees’ argument that the General
Assembly intended the 2006 revisions to the Judicial Code to be the exclusive statute
of limitations for all condemnation actions in light of the enactment of section 102(a)
of the Eminent Domain Code, which states that “[t]his title provides a complete and
exclusive procedure and law to govern all condemnations of property for public
purposes and the assessment of damages.” 26 Pa.C.S. §102(a). The trial court noted
that the phrase “[t]his title” refers only to the Eminent Domain Code.
             The trial court also noted that the Authority “operates in accordance
with the URL, and incorporates many procedures from the Eminent Domain Code,
but not all.” (Trial court op. at 5.) In this regard, the trial court explained that
“[r]edevelopment authorities with limited budget allocations by necessity must
operate more quickly than other condemnors. Public financing and bond issues could
never survive a six-year delay.” (Trial court op. at 5.) The trial court stressed that
repeal by implication is not favored under Pennsylvania law and “arises only where
language used in the later statute is irreconcilably repugnant to the provisions of the




                                           4
earlier statute so as absolutely to preclude a consonant construction of both.” Id.,
citing Duda v. Board of Pharmacy, 393 A.2d 57, 59 (Pa. Cmwlth. 1978).2 The trial
court found that it would be “far more reasonable to reconcile the two statutes to be a
general six-year statute of limitations for most condemnations under the Eminent
Domain Code, with a specific one-year statute applicable only to redevelopment
authorities under the URL.” Id. at 5-6.
                  Additionally, the trial court noted that prior to 2006, section 5526(4) of
the Judicial Code, 42 Pa.C.S. §5526(4),3 included a general five-year statute of
limitations for petitions to appoint a board of viewers, and that this section co-existed
with section 19.2 of the URL. Since these two sections existed together prior to the
implementation of Act 34 in 2006, the trial court stated it did not “see why the Court
should now assume the six-year statute governs exclusively, particularly without
distinct legislative intent to repeal [section 19.2].” (Trial court op. at 7.)
                  Further, the trial court emphasized that section 19.2 applies specifically
to condemnations by a redevelopment authority for which payment has been made,
whereas section 5527(a) applies to condemnors generally with or without a
declaration of taking or payment. The trial court also noted that the language of
section 19.2, i.e., “[n]otwithstanding the provisions of 42 Pa.C.S. §5526(4) (relating
to five year limitation) or any other provision of law to the contrary,” reflects an
“expansive pronouncement” of the continuing application of the one-year statute of


        2
          See also HSP Gaming, L.P. v. City of Philadelphia, 954 A.2d 1156, 1175 (Pa. 2008)
(“Repeals by implication are not favored and will not be implied unless there be an irreconcilable
conflict between statutes embracing the same subject matter.”)

        3
            Section 5526 was also repealed by Act 34 and replaced with section 5527(a) of the Judicial
Code.


                                                   5
limitations to condemnations effectuated by redevelopment authorities. (Trial court
op. at 8.)
              Condemnees thereafter filed a notice of appeal with the trial court as
well as a concise statement of matters complained of on appeal raising a single issue,
i.e., whether the six-year statute of limitations in section 5527(a) of the Judicial Code
repealed and supplanted the one-year statute of limitations in section 19.2 of the
URL. The trial court subsequently issued a statement in lieu of opinion standing by
the analysis in its original July 29, 2015 opinion.


                                       Discussion
              On appeal to this Court, Condemnees argue that the trial court erred in
failing to find that the Act 34 revisions in 2006, namely the six-year statute of
limitations set forth in section 5527 of the Judicial Code, repealed and supplanted the
one-year statute of limitations set forth in section 19.2 of the URL. We disagree.
              In 2005, our United States Supreme Court issued a 5-4 decision in the
case of Kelo v. City of New London, 545 U.S. 469 (2005). In Kelo, the Supreme
Court affirmed the decision of the Connecticut Supreme Court upholding the taking
of private property from nine landowners in connection with a redevelopment of the
downtown and waterfront areas of the City of New London (City). The New London
Development Corporation (NLDC), a private nonprofit entity, was established to
assist the City in planning economic development. The City Council thereafter
authorized the NLDC to submit formal development plans to the relevant state
agencies for review and formally designated the NLDC as its development agent in
charge of implementation. In this regard, City Council further authorized the NLDC
to acquire property by purchase or eminent domain for the redevelopment project.


                                            6
               After obtaining all of the necessary state-level approvals, the NLDC
began the process of acquiring the necessary land for redevelopment. The NLDC
was able to successfully purchase land from all but nine property owners in the area,
against whom the NLDC initiated condemnation proceedings. These nine property
owners owned a total of fifteen properties in the redevelopment area. There was no
allegation that any of these properties was blighted or otherwise in poor condition;
rather, they were condemned solely because they happened to be located in the
redevelopment area.
              The nine property owners thereafter commenced an action in the New
London Superior Court, alleging that the taking of their properties violated the
“public use” restriction of the Fifth Amendment to the United States Constitution.
The New London Superior Court agreed, in part, and granted a permanent restraining
order prohibiting the taking of eleven of these properties (relief was denied as to the
remaining four properties). However, on appeal, the Connecticut Supreme Court
reversed and held that all of the proposed takings were valid, concluding that the
taking of land as part of an economic development project was a “public use” and in
the “public interest.” Id. at 476.
              Our United States Supreme Court granted certiorari to determine
whether a city’s decision to take these properties for the purpose of economic
development satisfies the “public use” requirement of the Fifth Amendment to the
United States Constitution.4       The Supreme Court answered this question in the
affirmative, concluding that the City’s proposed disposition of property under the


       4
         The Fifth Amendment provides, in relevant part, “nor shall private property be taken for
public use, without just compensation.” U.S. CONST. amend. V.



                                               7
redevelopment plan qualifies as an appropriate “public use.”      The Supreme Court
reached this conclusion despite its acknowledgement that the properties were not
blighted and that the City did not plan to open all of the condemned land to use by the
general public. The Supreme Court reasoned that the City’s determination that the
area was “sufficiently distressed to justify a program of economic rejuvenation” was
entitled to deference, id. at 483, and that it had “long ago rejected any literal
requirement that condemned property be put into use for the general public,” in favor
of a “broader and more natural interpretation of public use as ‘public purpose.’” Id.
at 479-80 (citations omitted.)
             While the Supreme Court recognized that the proposed economic
development included a variety of commercial, residential, and recreational uses for
the condemned lands, it rejected the landowners’ contention that “using eminent
domain for economic development impermissibly blurs the boundary between public
and private takings.” Id. at 485. In this regard, the Supreme Court simply noted that
“the government’s pursuit of a public purpose will often benefit individual private
parties” and that “[t]he public end may be as well or better served through an agency
of private enterprise than through a department of government. . . .” Id. at 485-86
(citation omitted). The Supreme Court concluded by emphasizing that nothing in its
opinion precluded “any State from placing further restrictions on its exercise of the
takings power.” Id. at 489.
             Following the Supreme Court’s decision in Kelo, our Pennsylvania
House of Representatives’ State Government Committee conducted several hearings
to specifically address said decision and clarify the meaning of “public use” in this
Commonwealth. (See House Legislative Journal, November 1, 2005, pp. 2170-71.)
Ultimately, these hearings resulted in the drafting of HB 2054, which a former state


                                          8
representative described as a “product of a careful and . . . thoughtful consideration of
weighing private property rights against the need of the government on rare occasions
to exercise the extraordinary power of eminent domain.” Id. at 1271. Indeed, our
legislators promptly responded to what they perceived as an expansion of the ability
of local governments to take private property for private use, with one state
representative noting that “[w]hen the Kelo case happened, within a week we
introduced legislation that attempted to undo what the Supreme Court did, and what
they did was rule that the local government could take your property and give it to
someone else.” Id. at 2169. Nevertheless, another state representative expressed his
concern, and that of redevelopment authorities across the state, that this legislation
was “an overreaction to the Kelo case that the Supreme Court ruled on.” Id. at 2164.
HB 2054 ultimately became Act 34 of 2006, which was signed by then-Governor Ed
Rendell on May 4, 2006, and became effective 120 days later.
               Act 34 repealed the former Eminent Domain Code5 and section 5526(4)
of the Judicial Code.         Specifically, Act 34 enacted a new consolidated Eminent
Domain Code at 26 Pa.C.S. §§101 – 1106, which applied to all condemnations
effected on or after September 1, 2006. These new provisions, which included the
newly enacted Property Rights Protect Act, 26 Pa.C.S. §§201 – 207, sought to
counteract Kelo and expand protections for condemnees by limiting the ability of
governments to take private property for private use, reinforcing that a taking must be
for a valid public use.
                Act 34 also included the enactment of section 5527(a) of the Judicial
Code, which imposed a new six-year statute of limitations on the filing of a petition
for appointment of viewers after a declaration of taking has been filed. Act 34

      5
          Act of June 22, 1964, Special Sess., P.L. 84, formerly 26 P.S. §§1-101 – 1-903.


                                                  9
specifically repealed the five-year statute of limitations on such filings set forth in
former section 5526(a) of the Judicial Code. Further, as Appellants stress, section
6(1) of Act 34 stated that “this act shall apply to all condemnations effected on or
after the effective date of this section” and section 5(5) of Act 34 stated that “[a]ll
acts and parts of act are repealed insofar as they are inconsistent with this Act.”
              There can be no dispute that Act 34 does not explicitly reference section
19.2 of the URL, let alone expressly repeal or amend any URL provision, which
would exhibit a legislative intention to diminish or alter a redevelopment authority’s
condemnation power or the manner in which property is condemned by such an
authority.   Nor do Condemnees point to any discussion of section 19.2 in the
legislative history of Act 34. We must presume that the General Assembly was
aware of the one-year statute of limitations set forth in section 19.2 relating to
condemnations effectuated under the URL, to the exclusion of other limitations
provisions relating to condemnations effectuated under the Code. White v. Conestoga
Title Insurance Company, 53 A.3d 720, 731 (Pa. 2012) (“We are also to presume that
the General Assembly is familiar with extant law when enacting legislation.”)
Indeed, section 19.2 begins by expressly stating that “[n]otwithstanding the
provisions of 42 Pa.C.S. §5526(4) (relating to five year limitation) or any other
provision of law to the contrary. . . .” 35 P.S. §1719.2 (emphasis added). Section
1921(a) of the Statutory Construction Act of 1972 (Statutory Construction Act)
mandates that “[e]very statute shall be construed, if possible, to give effect to all of its
provisions.” 1 Pa.C.S. §1921(a).
             In light of the lack of any express repeal of, or amendment to, section
19.2 of the URL in Act 34, Condemnees rely on an argument that Act 34 impliedly
repealed section 19.2. However, as our Supreme Court has stated, “[i]t is a widely


                                            10
recognized principle that repeals by implication are not favored and will not be
permitted if there is any other reasonable construction, and that a law is not repealed
by a later enactment if the two may be operative without repugnance to each other.”
Hulsizer v. Labor Day Committee, Inc., 734 A.2d 848, 853 (Pa. 1999) (citation
omitted). Certainly, section 19.2 of the URL can operate without such repugnance to
section 5527(a) of the Judicial Code, just as it operated previously in conjunction
with section 5526(4) of the Judicial Code.
              Furthermore, our Supreme Court has held that “[e]ven where there is an
express repeal in the later legislation of all acts inconsistent therewith, such provision
is considered as an express recognition that those not inconsistent therewith remain in
force.” HSP Gaming, L.P. v. City of Philadelphia, 954 A.2d 1156, 1175 (Pa. 2008)
(citations omitted). Section 19.2 of the URL is not inconsistent with Act 34. While
Act 34 generally applies to all condemnations under the Code, the URL applies
exclusively to redevelopment authorities and incorporates many, but not all, of the
procedures set forth in the Code. In other words, section 19.2 of the URL applies to a
very specific subset of condemnations, i.e., those effectuated by a redevelopment
authority. In this regard, section 1933 of the Statutory Construction Act provides
that:

             Whenever a general provision in a statute shall be in
             conflict with a special provision in the same or another
             statute, the two shall be construed, if possible, so that effect
             may be given to both. If the conflict between the two
             provisions is irreconcilable, the special provisions shall
             prevail and shall be construed as an exception to the general
             provision, unless the general provision shall be enacted
             later and it shall be the manifest intention of the General
             Assembly that such general provision shall prevail.



                                           11
1 Pa.C.S. §1933. Again, as noted above, section 19.2 of the URL and the newly
enacted section 5527(a) of the Judicial Code can co-exist, with effect given to both
statutes. Even if the conflict between these two statutes was irreconcilable, the
special provision, namely section 19.2 of the URL, would prevail as an exception to
the general statute of limitations found in section 5527(a).


                                      Conclusion
              Because the one-year statute of limitations found in section 19.2 of the
URL has not been expressly or impliedly repealed by Act 34, Condemnees’ petitions
for appointment of viewers, which were filed more than two years after the
Authority’s final payments of estimated just compensation, were untimely.
              Accordingly, the order of the trial court sustaining the Authority’s
preliminary objections is affirmed.




                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge




                                           12
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Condemnation by the Redevelopment         :
Authority of Fayette County of Certain    :
Land In Brownsville Borough, Fayette      :
County, Pennsylvania,                     :
Being Property of:                        :
                                          :
Alpha Financial Mortgage, Inc., its       :
Successors, assigns, or any other person  :
or Entity found to have interest in the   :
property                                  :
                                          :      No. 1541 C.D. 2015
                    v.                    :
                                          :
Redevelopment Authority of                :
Fayette County                            :
                                          :
Appeal of: Alpha Financial Mortgage, Inc. :


In the Matter of:                            :
Condemnation by the Redevelopment            :
Authority of Fayette County of Certain       :
Land in Brownsville Borough, Fayette         :
County, Pennsylvania, Being Property of: :
Ernest E. Liggett and Marilyn Kostic Liggett :
                                             :   No. 2109 C.D. 2015
                   v.                        :
                                             :
Redevelopment Authority of                   :
Fayette County                               :
                                             :
Appeal of: Alpha Financial Mortgage, Inc., :
Ernest E. Liggett and Marilyn Kostic         :
Liggett, The Brownsville Group, Ltd.         :
and Manor Investments, Ltd.                  :
In the Matter of:                          :
                                           :
Condemnation by the Redevelopment          :
Authority of Fayette County of Certain     :
Land in Brownsville Borough, Fayette       :
County, Pennsylvania, Being Property of: :
                                           :
Brownsville Group, Ltd.                    :
                                           :   No. 2110 C.D. 2015
                   v.                      :
                                           :
Redevelopment Authority of                 :
Fayette County                             :
                                           :
Appeal of: Alpha Financial Mortgage, Inc., :
Ernest Liggett and Marilyn Kostik Liggett, :
The Brownsville Group, Ltd. and Manor      :
Investments, Ltd.                          :

In the Matter of: Condemnation by the      :
Redevelopment Authority of Fayette         :
County of Certain Land in Brownsville      :
Borough, Fayette County, Pennsylvania,     :
being property of:                         :
                                           :
Manor Investments, Ltd.                    :
                                           :   No. 2111 C.D. 2015
                   v.                      :
                                           :
Redevelopment Authority of                 :
Fayette County                             :
                                           :
Appeal of: Alpha Financial Mortgage, Inc., :
Ernest E. Liggett and Marilyn Kostik       :
Liggett, The Brownsville Group, Ltd. and :
Manor Investments, Ltd.                    :
                                   ORDER


            AND NOW, this 22nd day of December, 2016, the order of the Court
of Common Pleas of Fayette County (trial court), dated July 29, 2015, is hereby
affirmed.



                                        ________________________________
                                        PATRICIA A. McCULLOUGH, Judge
