         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Reed McCormick,                      :
                  Appellant          :
                                     :
            v.                       : No. 996 C.D. 2015
                                     : Submitted: June 3, 2016
Commonwealth of Pennsylvania,        :
Department of Transportation         :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                            FILED: July 11, 2016


            Reed McCormick (Condemnee) appeals from the May 14, 2015 order
of the Court of Common Pleas of Centre County (trial court) sustaining the
preliminary objections of the Commonwealth of Pennsylvania, Department of
Transportation (PennDOT) to Condemnee’s petition for the appointment of a board
of viewers (Petition) filed pursuant to Section 502 of the Eminent Domain Code,
26 Pa. C.S. §502. The issue in this case is whether there was a de facto taking of
the property before PennDOT filed its formal declaration of taking.       For the
following reasons, we affirm.
                                          I.
             Condemnee is the owner of the Skytop Vista development property
located in Centre County, Pennsylvania, as recorded via deed dated April 11, 1979.
In October 2001, PennDOT began construction of a four-lane limited access
highway known as I-99 in close proximity to Condemnee’s property. As part of
the project, PennDOT sought and obtained temporary easements for construction
purposes (TCEs) from both Condemnee and nearby property owner Willard E.
Rearick (Rearick).1 PennDOT then constructed Pond M on these two TCEs, which
was intended to be a temporary facility placed in a stream known as Buffalo Run
for the purpose of erosion and sediment pollution control from the I-99 project.


             Both of the TCEs contain the following release relating to damages
under the Eminent Domain Code for or by reason of the I-99 construction:


             The OWNER does further remise, release, quitclaim, and
             forever discharge the COMMONWEALTH or any
             agency or political subdivision thereof or its or their
             employees or representatives of and from all suits,
             damages, claims, and demands which the OWNER might
             otherwise have been entitled to assert under the
             provisions of the Eminent Domain Code, Act of June 22,
             1964, P.L. 84, as amended, 26 P.S. 1-101 et seq., for or
             on account of any injury to or destruction of the aforesaid
             property of the OWNER, through or by reason of the
             construction or improvement, except damages, if any,
             under Section 610 (Limited Reimbursement of Appraisal,
             Attorney, and Engineering Fees) and Section 610.1

      1
         Condemnee’s property was designated on PennDOT acquisition documents as Parcel
222, and Rearick’s property was designated as Parcel 226.




                                          2
                (Payment of Account of Increased Mortgage Costs) of
                the Eminent Domain Code; provided, however, that if
                relocation of a residence or business or farm operation is
                involved, this release shall likewise not apply to damage,
                if any, under Section 610-A(a) (Moving Expenses)
                and/or Section 603-A (Replacement Housing) of Eminent
                Domain Code.


(Reproduced Record (R.R.) at 713a, 1009a.)


                PennDOT admits that following commencement of the I-99
construction, the TCE on Parcel 222 was physically extended by 0.095 acres, or
4,417 feet, onto Condemnee’s property in order to lengthen a stormwater half-pipe2
along the steep slope area above Pond M.3 After this extension and after PennDOT
commenced using both TCE areas, Condemnee acquired from Rearick 2.67 acres
of land from Parcel 226. The entire TCE area owned by Rearick was transferred to
Condemnee as part of this transaction, including the area of Parcel 226
encumbered by Pond M. This deed was recorded on July 5, 2006. Among the
listed encumbrances, the deed specifically indicated that the property was subject
to the existing TCE benefitting PennDOT, stating:

                UNDER AND SUBJECT to a temporary construction
                easement over a major portion of the herein described
                parcel, north of Mattern Lane, as shown on plans for



      2
          This stormwater half-pipe is also referred to in the record as structure DC-21.

      3
          The parties stipulated to these facts and they are not contested on appeal.




                                                  3
                construction of State Route 6220[4] Section A121 and
                State Route 3042.


(R.R. at 732a.)


                At some point during the I-99 project, PennDOT became aware of an
acid rock drainage (ARD) issue due to the presence of pyritic sandstone in the
construction zone. PennDOT then allegedly began using Pond M on Condemnee’s
property to gather, treat and remediate the ARD pollution caused by the I-99
project. According to Condemnee, this use of his property by PennDOT for
pollution control rendered his land unusable and dangerous. Therefore, on October
8, 2009, Condemnee filed a petition for appointment of a board of viewers alleging
a de facto taking of his property by PennDOT in the area of Pond M. Condemnee
asserted that the taking commenced around December 15, 2003, and was still
ongoing. Condemnee also asserted that this use of his property was not part of the
TCEs because the easement was specifically limited to erosion and sedimentation,
not pollution control; therefore, the use was unauthorized and not covered by the
release.


                On November 9, 2009, PennDOT filed preliminary objections
asserting the following:          no de facto taking could occur because all of the
PennDOT activities complained of were within the scope of the TCE and release;
Condemnee’s waiver of liability was voluntarily given; and Condemnee was bound


      4
           State Route 6220 is also known as I-99.




                                                 4
by the release and waiver given to PennDOT by Rearick, the record owner of
Parcel 226 at the time of the conveyance.


              In an ancillary matter, on December 11, 2009, PennDOT filed a
formal declaration of taking asserting a partial taking of property owned by
Condemnee for the purpose of constructing a permanent pollution mitigation site
for the land adversely affected by its proximity to I-99.               Condemnee filed
preliminary objections to the declaration of taking alleging that the property had
already been acquired through a de facto taking. On February 19, 2010, PennDOT
filed a motion to dismiss the preliminary objections and a motion for writ of
possession alleging that Condemnee had applied for the payment of just
compensation.       Condemnee subsequently acknowledged acceptance of just
compensation.


              Following a hearing, the trial court entered orders dismissing
Condemnee’s preliminary objections, granting possession of the land to PennDOT
and enjoining Condemnee from obstructing PennDOT’s use of the premises.
Condemnee appealed to this Court and we affirmed the trial court’s orders in an
unreported opinion.5       Condemnee’s petition for allowance of appeal to the
Supreme Court of Pennsylvania was denied by order dated September 26, 2011.



       5
        See In Re: Condemnation by the Commonwealth of Pennsylvania, Department of
Transportation of Right-of-Way for State Route 6220, Section C12, a Limited Access Highway in
the Townships of Huston and Patton, (Pa. Cmwlth., No. 1091 C.D. 2010, filed December 6,
2010).




                                             5
             The case then returned to the trial court for consideration of the within
matter – Condemnee’s allegation of a de facto taking.           Following extensive
discovery and two evidentiary hearings, the trial court held that a de facto
condemnation took place with respect to the additional 4,417 square feet of
Condemnee’s property acquired to lengthen the stormwater half-pipe, and
appointed a board of viewers for the determination of damages in accord with the
provisions of the Eminent Domain Code. However, it found that a de facto taking
had not occurred with regard to the other parcels. The trial court’s order states, in
pertinent part:

             1.    The Commonwealth’s Objection to the inclusion
             of Parcel 226 is SUSTAINED as Plaintiff was not the
             record owner of the Parcel as of the date of the alleged
             De Facto Taking.

             2.     The Commonwealth’s Objection to any de facto
             taking as a result of acid rock drainage mitigation use in
             the temporary construction easement areas with respect
             to either Parcel 226 or Parcel 222 (except as otherwise
             set forth herein) is SUSTAINED as said use was a result
             of construction activity within the scope of the temporary
             construction easements and is thereby bared [sic] by the
             releases contained in the documents of title introduced
             herein.

             3.    The Court accepts the Stipulation of the parties
             regarding the physical extension of structure DC-21.
             Said Stipulation acknowledges that the existing TCE was
             physically extended by 4,417 square feet on October 3,
             2001.




                                          6
(R.R. at 219a.) This appeal followed.6


                                              II.
              Condemnee first argues that the trial court erred in determining that
the release language contained in the TCEs for Parcels 222 and 226 was
sufficiently broad to cover use of the property for pollution control. According to
Condemnee, the release language was explicitly limited to erosion and sediment
(E&S) control; therefore, he could not have known that PennDOT intended to use
the land for ARD management. Condemnee also asserts that PennDOT itself was
not aware of the ARD until September 2003, two to three years after entering into
the TCEs.


              We recognize the well-established principle that such releases “must
be construed strictly ‘so as to avoid the ever present possibility that the releaser
may be overreached.’” Finsel v. Commonwealth of Pennsylvania, Department of
Highways, 349 A.2d 785, 786 (Pa. Cmwlth. 1975) (quoting Restifo v. McDonald,
230 A.2d 199, 201 (Pa. 1967)). In addition, “a release may cover only such
matters as can fairly be said to be within the contemplation of the parties when
executed.”       Mancia v. Commonwealth of Pennsylvania, Department of
Transportation, 517 A.2d 1381, 1384 (Pa. Cmwlth. 1986) (citations omitted).
Nonetheless, we have repeatedly held that similar language in releases executed

       6
         Our review of a trial court’s ruling on preliminary objections to a petition for
appointment of a board of viewers is limited to determining whether necessary findings are
supported by substantial evidence and whether the trial court committed an error of law. Ristvey
v. Commonwealth of Pennsylvania, Department of Transportation, 52 A.3d 425, 429 n.3 (Pa.
Cmwlth. 2012).




                                               7
with PennDOT was sufficiently specific and within the contemplation of the
parties so as to completely bar condemnees’ claims for damages under the Eminent
Domain Code. See Mancia, 517 A.2d at 1384; Thomas v. Commonwealth of
Pennsylvania, Department of Transportation, 398 A.2d 1076, 1078 (Pa. Cmwlth.
1979);   Susterick    v.   Commonwealth       of   Pennsylvania,     Department     of
Transportation, 374 A.2d 749, 751 (Pa. Cmwlth. 1977); Finsel, 349 A.2d at 787;
Seitz v. Commonwealth of Pennsylvania, Department of Transportation, 296 A.2d
280, 282 (Pa. Cmwlth. 1972).


             The trial court found that use of the TCEs areas for ARD management
was within the scope of the general releases and contemplated by the parties. It
based that conclusion on the testimony of Professional Engineer David Galeone,
who testified on behalf of PennDOT as an expert witness in interstate highway
design as well as the highway design engineer for I-99, beginning in 1998. He
testified that PennDOT prepared an Erosion and Sediment Pollution Control Plan
as part of the I-99 project, and this plan included a drainage basin referred to as
Pond M. He also testified that ARD management due to the presence of pyrite in
the construction zone was part of the design as well as the final plans provided as
part of the construction bid package submitted in 2000. Marv Klinger, an expert in
the field of environmental science whose work on the I-99 project began in 1992,
testified that PennDOT was aware of the presence of potential pyrite-bearing areas
in the construction zone prior to the initiation of construction. Mr. Klinger testified
that PennDOT was required and did, in fact, obtain a national pollution discharge
elimination system (NPDES) permit from the Department of Environmental
Protection allowing Pond M to be used for ARD management. Mr. Klinger also



                                          8
prepared and testified regarding an ARD timeline with respect to the I-99 project,
spanning from 1992 to March 2010.


            Condemnee offered the testimony of Wayne Engle, a professional
land surveyor; however, Mr. Engle admitted that he had no experience in designing
interstate highway facilities and did not have any engineering background or
training. On cross-examination, Mr. Engle acknowledged that both the NPDES
permit and the E&S plan addressed pollutants from the I-99 project. Condemnee
himself testified as to his observations around the construction zone and Pond M.
He also testified that he believed he only granted PennDOT TCEs for E&S control
and not pollution or ARD management.         However, a condemnee’s subjective
understanding of the ramifications of his settlement, by itself, is not conclusive.
See Thomas, 398 A.2d at 1078-79. Moreover, “the resolution of conflicts in
evidence and determination of the credibility of witnesses in eminent domain cases
are properly within the lower court’s province.” Id. at 1079.


            We have repeatedly held that at the time of the conveyance,
condemnees are “confronted with the not unusual, difficult problem which
confronts all who are contemplating accepting a settlement for the damages due to
an eminent domain taking. They had to visualize, difficult as it might be, all the
damages to which they might be entitled by virtue of that taking.” Seitz, 296 A.2d
at 282; see also Finsel, 349 A.2d at 786.       As such, the record here clearly
demonstrates that Condemnee should have been aware of the potential for ARD at
the time of the conveyance. Given all of the above, we find no error in the trial
court’s determination that the release language contained in the TCEs was



                                         9
sufficiently broad to cover use of the property for pollution control and that this
use was or should have been contemplated by the parties.7


                                             III.
              Condemnee also alleges that the trial court erred in finding that he was
precluded from establishing a de facto taking with respect to Parcel 226 because he
was not the record owner of the parcel at the time of the taking. This argument is
without merit. We have repeatedly held that a general release from all damages
under the Eminent Domain Code executed by a predecessor in interest bars a
condemnee’s present claim for damages or injury found to be within the scope of
the project. See Mancia, 517 A.2d at 1384; Susterick, 374 A.2d at 750; Finsel, 349
A.2d at 786-87. The releases contained in the TCEs for Parcels 222 and 226 are
identical, and it is undisputed that Condemnee did not own Parcel 226 at the time
the TCEs were executed. Moreover, there is no evidence in the record to support
Condemnee’s assertion that the taking did not occur until 2003, several years after
the TCEs were executed. Finally, Condemnee was aware of the release given by
Rearick to PennDOT as the encumbrance was specifically listed in the chain of
title for Parcel 226. The release was contained in the recorded deed from Rearick
to PennDOT, and Condemnee’s own subsequent deed from Rearick expressly
stated that the transfer was subject to PennDOT’s TCEs “as shown on plans for
construction of [I-99] Section A121 and State Route 3042.” (R.R. at 732a.)



       7
         A party seeking to set aside a release may also do so by establishing fraud, duress or
deception by PennDOT through clear, precise and convincing evidence. Mancia, 517 A.2d at
1383. Condemnee has not even alleged, let alone sufficiently proven, any of these grounds;
therefore, they will not be addressed.



                                              10
Accordingly, the order of the trial court is affirmed.




                             DAN PELLEGRINI, Senior Judge




                            11
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Reed McCormick,                   :
                   Appellant      :
                                  :
            v.                    : No. 996 C.D. 2015
                                  :
Commonwealth of Pennsylvania,     :
Department of Transportation      :




                                ORDER


            AND NOW, this 11th day of July, 2016, the order of the Court of
Common Pleas of Centre County in the above-captioned matter, dated May 14,
2015, is hereby affirmed.




                                     DAN PELLEGRINI, Senior Judge
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Reed McCormick,                       :
                  Appellant           :
                                      :   No. 996 C.D. 2015
            v.                        :
                                      :   Submitted: June 3, 2016
Commonwealth of Pennsylvania,         :
Department of Transportation          :



BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge



OPINION NOT REPORTED


DISSENTING OPINION BY
JUDGE McCULLOUGH                                       FILED: July 11, 2016


            I respectfully dissent because I do not believe that the release
language included by the Commonwealth of Pennsylvania, Department of
Transportation (PennDOT) in the temporary construction easements (TCEs)
obtained from Reed McCormick (Condemnee) and neighboring landowner Willard
E. Rearick was sufficient to encompass remediation of an acid rock drainage
(ARD) issue.
            As the Majority notes, PennDOT obtained the necessary TCEs from
Condemnee and Rearick in relation to the construction of a four-lane limited
access highway known as I-99. After obtaining the TCEs, PennDOT constructed
Pond M, which was intended as a temporary facility placed in a stream known as
Buffalo Run for the limited purpose of erosion and sediment pollution control from
the I-99 project. Upon discovery of the ARD issue, PennDOT began using Pond
M on Condemnee’s property to gather, treat, and remediate the ARD pollution, the
result of which allegedly left Condmenee’s land unusable and dangerous and
precipitated Condemnee’s filing of a petition for appointment of viewers asserting
that PennDOT had effectuated a de facto taking of his property. PennDOT filed
preliminary objections contending that all of its activities were within the scope of
the TCEs and releases, to which Condemnee was bound. The trial court agreed,
concluding that the ARD mitigation use “was a result of construction activity
within the scope of the [TCEs] and is thereby bared [sic] by the releases” contained
therein. (Reproduced Record (R.R.) at 219a.)
               The Majority affirms the trial court decision, noting that Condemnee
should have been aware of the potential for ARD at the time he executed the TCE.
The Majority relies on several cases which held that similar language in other
PennDOT releases “was sufficiently specific and within the contemplation of the
parties so as to completely bar condemnees’ claims for damages under the Eminent
Domain Code[1].” (Slip op. at 7.) However, I disagree with the Majority that
Condemnee should have, or could have, anticipated the possibility of ARD
pollution, and any resultant damage to his property, at the time he executed the
TCE. Further, I believe the cases relied on by the Majority are distinguishable, as,
unlike the present case, the potential damage in those cases was foreseeable.
               For example, in Mancia v. Commonwealth of Pennsylvania,
Department of Transportation, 517 A.2d 1381 (Pa. Cmwlth. 1986), the landowners
complained of drainage damage but the record established that the landowners had


      1
          26 Pa.C.S. §§101 – 1106.
                                      PAM - 2
reviewed construction plans, discussed damages with a PennDOT negotiator, and
signed a planning sheet showing the drainage changes, which included replacement
of a twelve-inch drainage pipe with an eighteen-inch drainage pipe. Additionally,
the release signed by the landowners in Mancia specifically referenced drainage
issues.      In Thomas v. Commonwealth of Pennsylvania, Department of
Transportation, 398 A.2d 1076 (Pa. Cmwlth. 1979), while the issue was really one
of fraudulent misrepresentation by PennDOT in procuring an easement and release,
we noted that the landowners in that case had “executed and delivered a plot plan
attached to the deed of easement which indicated the area to be affected and stated
in part that the plan had been examined and explained to them.” Id. at 1077.
              In Susterick v. Commonwealth of Pennsylvania, Department of
Transportation, 374 A.2d 749 (Pa. Cmwlth. 1977), the landowners complained of
damage to their property from debris, water, and ice falling from a bridge, but the
record included an appraisal report from a Commonwealth engineer, which appears
to have been submitted to the prior landowner in the course of obtaining an
easement and release, that specifically identified the possibility of damage of this
nature. In Finsel v. Commonwealth of Pennsylvania, Department of Highways,
349 A.2d 785 (Pa. Cmwlth. 1975), the landowners complained of flooding damage
caused by water runoff after PennDOT widened and upgraded an existing highway
that crossed their property.   We held that the release signed by the landowners
“discharges all claims under the Eminent Domain Code” and “most certainly
contemplates all indirect and consequential damages which might result from the
highway improvements, such as surface water runoff.” Id. at 787 (emphasis in
original).




                                     PAM - 3
             Finally, in Seitz v. Commonwealth of Pennsylvania, Department of
Transportation, 296 A.2d 280 (Pa. Cmwlth. 1972), the landowners complained of
damage to their property from cars careening off a recently-improved highway
with a redesigned curve. The landowners noted that PennDOT changed the grade
of the highway during construction which resulted in an increase in the speed of
traffic traveling the highway. However, the record indicated that a change in the
grade and a redesigned curve were part of the original plans approved by the
Governor and that, at the time the release was signed, the reconstruction of the
highway was underway and it was nearly complete by the time the landowners
received their payment from PennDOT for a partial taking of their land.
             In the present case, while the release was broadly worded to include
“all suits, damages, claims, and demands which the OWNER might otherwise have
been entitled to assert under the provisions of the Eminent Domain Code,” (R.R. at
713a, 1009a), it appears that both PennDOT and Condemnee only envisioned using
Pond M on the TCEs for the purpose of erosion and sediment control, and not to
remediate ARD pollution. Although the cases discussed above cite the difficult
decision that a landowner must face in contemplating a settlement for damages
related to a taking via eminent domain, i.e., trying to visualize all of the damages to
which they might be entitled by virtue of the taking, I simply cannot envision a
landowner in the position of Condemnee reasonably foreseeing potential damage
to his property resulting from remediation of an ARD pollution issue. Indeed, the
cases cited above also state that these types of releases “must be construed
strictly,” Finsel, 349 A.2d at 786, and that “a release may cover only such matters
as can fairly be said to be within the contemplation of the parties when executed.”
Mancia, 517 A.2d at 1384.


                                      PAM - 4
                For these reasons, I would reverse the order of the Court of Common
Pleas of Centre County sustaining PennDOT’s preliminary objections to
Condemnee’s petition for the appointment of a board of viewers asserting a de
facto taking.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge




                                       PAM - 5
