        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

HPT TA Properties Trust,                :
                        Appellant       :
                                        :
                   v.                   :   No. 410 C.D. 2019
                                        :   ARGUED: December 12, 2019
Township of West Hanover                :


BEFORE:     HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                   FILED: April 27, 2020


            HPT TA Properties Trust (HPT) appeals from an order of the Court of
Common Pleas of Dauphin County that granted the motion for judgment
notwithstanding the verdict (JNOV) filed by the Township of West Hanover
following a jury trial. The jury returned a $1,750,000 verdict in favor of HPT for
the alleged diminution in property value due to the closure of an elbow-shaped road
(Elbow) providing a second access point to HPT’s property. We affirm.
            The relevant background is as follows. HPT operates a truck stop on
its fifty-three-acre property located adjacent to Linglestown Road in the Township.
Originally, the property consisted of two parcels with different owners. (Oct. 28,
2018, Stip., Ex. P-20; Reproduced Record “R.R.” at 43a.) One of the parcels was
landlocked and the other had access to Linglestown Road. In a 1966 Deed of
Easement between the Commonwealth of Pennsylvania, Department of Highways,1
and the former owners of the parcel with access (Grantors), the Commonwealth
created the Elbow as a public service road to provide the landlocked parcel with
access to Linglestown Road.            (Trial Court’s March 26, 2019, Op. at 2 n.1.)
Subsequently, HPT became the owner of both parcels. (Stip., Ex. P-20; R.R. at 44a.)
With Linglestown Road providing sole vehicular access, cars and tractor-trailers
used proximate but separate access points to enter and exit the property. Car traffic
used the Elbow and tractor-trailer traffic used a separate access point added in the
1980s. (Trial Court’s Op. at 2.)
                In September 2008, the Township filed a Declaration of Taking
(Declaration) for a portion of the property to widen Linglestown Road and to make
related improvements in the area of Interstate 81 and exit 77 in conjunction with the
Commonwealth. The Township attached a plan of the taking to the Declaration.
(Sept. 15, 2008, Declaration; R.R. at 25-27a.) In February 2009, the Township paid
$15,385.55 as estimated just compensation. (Stip., Ex. P-20; R.R. at 43a.)
                Two years later, in November 2010, the Elbow was closed thereby
limiting access to one lighted intersection for all traffic entering and exiting the
property from Linglestown Road.2 (Trial Court’s Op. at 2.) In December 2013, HPT
petitioned for an appointment of a Board of Viewers to determine just compensation
pursuant to Section 502(b) of the Eminent Domain Code (Code), 26 Pa.C.S. §
502(b).      HPT acknowledged that it did not file preliminary objections to the
Declaration and that the parties were unable to reach an agreement on the amount of
just compensation.         (Dec. 4, 2013, Petition; Suppl. R.R. “S.R.R.” at 407b.)

    1
        The Department of Highways was the predecessor to the Department of Transportation.
    2
     The district manager for the truck stop, Steven Swartz, testified as to the closure date.
(November 13, 2018, Hearing, Notes of Testimony “N.T.” at 43; R.R. at 162a.)


                                               2
Following the appointment, the Board held a January 2015 hearing at which both
parties submitted testimony and expert reports.                 HPT included in its damage
calculations loss resulting from the closure of the Elbow. In February 2015, the
Board filed a report finding that HPT sustained $1,250,000 in damages due to the
taking.
               In March 2015, the Township appealed to the trial court and requested
a trial de novo.3 The Township challenged both the Board’s valuation and whether
HPT had a compensable interest in the Elbow. Specifically, the Township alleged
that the Board erred in compensating HPT for alleged easement rights over a car
access point (1) that the Township did not take in the Declaration; (2) that HPT did
not specifically allege in the Petition; (3) that HPT never pursued in preliminary
objections; and (4) that HPT did not own. (Township’s March 2, 2015, Notice of
Appeal; S.R.R. at 421b.) Additionally, the Township alleged that any minor changes
to an intersection requiring a property owner to travel a short distance were not
compensable. (Id. at 422b.)
               In November 2018, the trial court presided over a four-day jury trial.
HPT attempted to establish that it sustained compensable damages of $1,750,000

    3
       Discovery and pre-trial motions ensued. Pursuant to a bifurcated case management order,
the trial court permitted the parties to complete discovery related to dispositive motions (not to
include valuation) and set filing deadlines for motions and briefs. (March 26, 2015, Trial Court
Order; S.R.R. at 427b.) The Township filed a motion for partial summary judgment and/or a
motion in limine to preclude valuation evidence regarding the Elbow. The trial court denied the
Township’s motions, concluding that there were questions of material fact as to whether HPT had
the right to use the Elbow pursuant to an easement. (Trial Court’s March 15, 2016, Order; S.R.R.
at 471b.) [Initially, HPT maintained that it had “an express, implied or prescriptive easement to
use the Elbow to access the Property and that a quiet title action brought by a buyer or seller of the
Property would have easily been successful to confirm HPT’s right to use the Elbow.” (HPT’s
Oct. 28, 2015, Brief in Opposition to the Township’s Motions; R.R. at 439.)] Discovery relating
to valuation and additional motions followed. Subsequently, the trial court reiterated that there
was a factual issue as to whether HPT could receive compensation for closure of the Elbow.


                                                  3
due to the closure of the Elbow. Specifically, it sought to prove that the closure
resulted in cars and tractor-trailers entering and exiting the property via one access
point thereby creating unsafe conflict zones on the property between the two types
of vehicles. The Township maintained that the lighted intersection improved the
property and that HPT had no compensable interest in the Elbow as a matter of law.
Ultimately, the jury rendered a $1,750,000 verdict in favor of HPT.
               In the ensuing motion for JNOV, the Township argued that, absent a
compensable interest in the Elbow, the jury should not have awarded HPT
compensation for the alleged diminution in value due to the Elbow’s closure. The
trial court granted the motion, set aside the jury’s verdict in favor of HPT, and
directed judgment in favor of the Township as a matter of law. In support, the trial
court observed: “Although it is undisputed that the Township took 0.054 acres . . . ,
[HPT] did not present any evidence to support an argument that the value of the
[p]roperty decreased as a result of the loss of this land. Rather, [HPT’s] expert solely
relied on the closure of the Elbow to find a decrease in the [p]roperty’s value.” (Trial
Court’s Op. at 5 n.2.) However, “the expert testimony show[ed] that the Elbow was
owned by the Commonwealth and could have been closed by the Commonwealth at
any time without paying any compensation to [HPT].” (Id. at 4.) Additionally, the
trial court concluded that “prevailing case law holds that a property owner does not
have a cognizable legal interest in preserving a particular traffic flow[.]” (Id. at 4-
5.) 4 HPT’s appeal to this Court followed.

    4
      A JNOV is appropriate where a movant is entitled to judgment as a matter of law, and where
the evidence is such that no two reasonable minds could disagree that the verdict should have been
rendered in favor of the movant. Rohm and Hass Co. v. Cont’l Cas. Co., 781 A.2d 1172, 1176
(Pa. 2001). In each instance, the evidence must be considered in the light most favorable to the
verdict winner, the verdict winner must be given every reasonable inference of fact arising from
the evidence, and any conflicts in the evidence must be resolved in favor of the verdict winner.



                                                4
               On appeal, HPT poses the issue of whether it is entitled to any decrease
in value to its property caused by the condemnation’s closure of a critical driveway.
In support of its position that the trial court erred in granting the motion for JNOV,
HPT maintains that the trial court improperly determined that the taking did not
include areas within the Elbow. Additionally, HPT argues that regardless of what
land was subject to the actual taking, the taking had a significant impact on the
property’s value beyond the physical taking and, accordingly, HPT had compensable
damages due to deprivation of reasonable access.
               As an initial matter, HPT’s traffic engineer, David Shropshire, testified
that he reviewed the recorded documents/drawings referenced in the Declaration in
ascertaining the extent of the taking. (Plans, Township’s Ex. T-2; S.R.R. at 474b.)
He acknowledged that the drawings reflected that the Commonwealth owned parcel
eighteen, the Elbow. (Nov. 13, 2018, Hearing, Notes of Testimony “N.T.” at 90-92;
R.R. at 209-11a.) Additionally, he admitted that the Elbow was designated: “NO
TAKE.” (Id. at 91; R.R. at 210a.)
               The 1966 Deed of Easement provides that the Commonwealth initially
filed a plan with the Dauphin County Recorder of Deeds indicating an authorization
to condemn an easement for highway purposes from Grantors’ property. However,
the parties subsequently “agreed that in lieu of condemnation, the GRANTOR[S]
will convey to the COMMONWEALTH an easement for highway purposes from
the aforesaid property” for $1.00 “and other good and valuable consideration[.]”
(Sept. 1, 1966, Deed of Easement, Township’s Ex. T-4; S.R.R. at 429b) (emphasis


Moure v. Raeuchle, 604 A.2d 1003, 1007 (Pa. 1992). A JNOV must only be entered in a clear
case that is free from doubt. Id. Appellate review of the evidence may not be based on how the
court would have voted if it had been the jury, but "on the facts as they come through the sieve of
the jury's deliberations." Brown v. Shirks Motor Express, 143 A.2d 374 (Pa. 1958).


                                                5
added). Specifically, Grantors granted and conveyed approximately 1.02 acres to
the Commonwealth “the easement required for highway purposes, unlimited in
vertical dimension, as shown on the plot plan attached hereto and made a part hereof,
said easement to be taken from the premises more fully described in [Grantors’]
deed[.]” (Id.) In addition, with respect to liability and damages, the Deed of
Easement provided that Grantors

             release[d], quitclaim[ed] and forever discharge[d] the
             COMMONWEALTH . . . from all suits, damages, claims
             and demands whatsoever, in law or equity or otherwise,
             against it . . . for or on account of any injury to or
             destruction of the lands of the GRANTOR[S] through or
             by reason of the . . . deprivation of the right of access,
             egress and ingress to and from said section of highway [the
             Elbow] . . . .

(Id.)
             The legal effect of a deed of easement for highway purposes is that the
Commonwealth has “the right to the actual and exclusive possession of the property
at all times and for all purposes, . . . includ[ing] the right to build on the land, fence
it in, and exclude other uses.” In re Marivitz, 636 A.2d 1241, 1243 (Pa. Cmwlth.
1994). See also In re Condemnation by Dep’t of Transp. (Bernstein Appeal), 535
A.2d 1210, 1214 (Pa. Cmwlth. 1988) (notwithstanding the fact that a portion of
property was subject to a de jure taking, landowners lacked a compensable property
interest in land that was previously taken in a deed of easement for highway
purposes). Notably, a deed of easement is more than a mere easement or right of
way. Marivitz, 636 A.2d at 1243. “It is comparable to a fee in the surface and so
much beneath as may be necessary for support. This estate, taken from an owner




                                            6
under the right of eminent domain, has no further practical value to the owner in
view of the rights of the state in it, unless the easement is formally abandoned.”5 Id.
               Even viewing the evidence in the light most favorable to HPT, it shows
that the Commonwealth owned the Elbow.6 Additionally, HPT’s argument that it
was entitled to compensation for closure of the Elbow runs contrary to the language
of the Deed of Easement and the nature of deeds of easement. The Deed of Easement
was filed in the Dauphin County Recorder of Deeds Office and the document’s
unambiguous language recites that Grantors conveyed the Elbow to the
Commonwealth. (S.R.R. at 429b.) HPT cannot assert the rights of a condemnee in
the absence of a compensable interest as a property owner. In re Condemnation by
Dep’t of Transp., of Two (2) Billboards Located on T.R. 209 etc., 452 A.2d 81, 83
(Pa. Cmwlth. 1982).
               Furthermore, the recorded Deed of Easement contains an explicit
waiver to the effect that Grantors forever agreed not to seek damages from the
Commonwealth due to closing the Elbow. Specifically, Grantors released and
discharged the Commonwealth from damages pertaining to “deprivation of the right
of access, egress and ingress to and from said section of highway [the Elbow].”
(S.R.R. at 429b.) This explicit and recorded waiver is binding on the subsequent
purchaser. See Palm Corp. v. Dep’t of Transp., 688 A.2d 251, 254 (Pa. Cmwlth.

    5
      Here, clearly, there was no abandonment. The access provided by the Elbow lasted for
decades, and was continuously used pursuant to the Deed of Easement for highway purposes until
two years after the Township’s taking.
    6
       The parties stipulated that HPT “owned a fee simple interest in the Elbow property area
subject to the Deed of Easement [at the time of the taking].” (Stip., Ex. P-20; R.R. at 44a.)
Additionally, the trial court noted the parties’ agreement that HPT “still owns the underlying land
where a portion of the Elbow was located.” (Trial Court’s Op. at 2.) However, the evidence must
support any stipulation or determination. Notably, the stipulation’s careful language characterized
the location of the ownership interest as “the Elbow property area.”



                                                7
1997) (purchaser with notice of an existing easement takes land subject to that
easement).
               Consequently, the trial court did not err in concluding that HPT had no
compensable interest in the closing of the Elbow and accordingly, we affirm.7




                                               _____________________________________
                                               BONNIE BRIGANCE LEADBETTER,
                                               Senior Judge




    7
      In light of our disposition as to the legal effect of the Deed of Easement, we need not reach
any issues pertaining to alleged unreasonable access due to the closure of the Elbow. In any event,
HPT failed to plead an issue as to the reasonableness of its access after the taking or to file an
action under another provision of the Eminent Domain Code. (See Section 714, 26 Pa. C.S. § 714
“consequential damages” or Section 715, 26 Pa. C.S. § 715 “vacation of public road”). Of course,
these actions may have been problematic given the legal effect of the Deed of Easement.
     Regardless, HPT’s argument that closure of the Elbow resulted in a compensable deprivation
of reasonable access lacks merit. This is a case of a non-compensable change in traffic flow. See
Sienkiewicz v. Dep’t of Transp., 883 A.2d 494, 498 (Pa. 2005) (notwithstanding the fact that every
property owner has a right to reasonable access to his property from a public roadway, there is no
cognizable legal interest in preservation of a particular traffic flow), and Dep’t of Transp. v. Elser
(Elser I), 620 A.2d 67 (Pa. Cmwlth. 1993) (no just compensation warranted for “denial of
unfettered access to the public way.”). Notably, the improvement project resulted in the closure
of one access point but not all access to Linglestown Road. Additionally, the evidence did not
reflect that the improved intersection constituted unreasonable access. (Trial Court’s Op. at 8.)
Instead, the evidence indicated that the conflict zones with intersecting cars and tractor-trailers
were limited to the property and that the Township did not control any areas within those zones.
(Nov. 13, 2018, Hearing, N.T. at 102-03; R.R. at 221-22a.)
     Moreover, the Township improved the remaining access point by constructing a lighted
intersection. Even HPT’s experts (traffic engineer and truck stop consultant) conceded that the
improved intersection provided some benefit and/or contributed to public safety. (N.T. at 116 and
142-43; R.R. at 235a and 261-62a.) The fact that the lighted intersection made it easier for traffic
to access a competing truck stop across the street (N.T. at 143-44; R.R. at 262-63a) did not cause
otherwise reasonable access to become unreasonable.


                                                  8
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

HPT TA Properties Trust,               :
                        Appellant      :
                                       :
                 v.                    :   No. 410 C.D. 2019
                                       :
Township of West Hanover               :


                                    ORDER


           AND NOW, this 27th day of April, 2020, the order of the Court of
Common Pleas of Dauphin County is hereby AFFIRMED.




                                     _____________________________________
                                     BONNIE BRIGANCE LEADBETTER,
                                     Senior Judge
