              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Upper Perkiomen School District         :
                                        :   No. 260 C.D. 2018
            v.                          :
                                        :   Argued: December 13, 2018
Dennis M. Giansante and Shirley J.      :
Giansante,                              :
                 Appellants             :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                         FILED: April 10, 2019

            Dennis M. Giansante and Shirley J. Giansante (collectively, the
Landowners) appeal from the February 15, 2018 order of the Court of Common Pleas
of Montgomery County (trial court) overruling the Landowners’ preliminary
objections to the Upper Perkiomen School District’s (District) declaration of taking
of a portion of the Landowners’ property.


                          Facts and Procedural History
            In 2017, the District’s Board of Directors announced its intention to
construct a new middle school adjacent to the District’s existing high school. (Trial
court order at 1; Reproduced Record (R.R.) at 11a.) The new middle school would be
located near the corner of Montgomery Avenue and 11th Street in Pennsburg
Borough.   (R.R. at 11a, 14a, 85a.)    On June 22, 2017, the District’s Board of
Directors passed a resolution authorizing the condemnation of a portion of the
Landowners’ property for “off-site sidewalk improvements to provide a safe walking
route for students” to the planned middle school. (R.R. at 11a.) The Landowners’
property is located at 1028 Montgomery Avenue, on the corner of Montgomery
Avenue and 11th Street, in Pennsburg Borough. Id. While the Landowners’ property
is situated approximately 1,000 feet from the location of the new middle school, it is
across the street from property owned by the District. (R.R. at 85a, 172a.)
                The Board of Directors’ resolution sought “to obtain the perpetual and
uninterrupted obtain [sic] a general public pedestrian easement, a permanent sidewalk
easement on, over, across, under and through that 73 square foot portion of [the
Landowners’] [p]roperty identified as ‘Permanent Sidewalk Easement.’” (R.R. at
11a). The resolution also authorized a “temporary construction easement on, over,
across, under and through that certain (177) square foot portion of [the Landowners’]
property identified as the ‘Temporary Construction Easement.’” Id.
                On August 22, 2017, the District filed a declaration of taking
(Declaration) pursuant to section 302 of the Pennsylvania Eminent Domain Code, 26
Pa.C.S. §302.1 (R.R. at 5a.) The Declaration sought to obtain a perpetual easement


       1
           Section 302(a) of the Eminent Domain Code provides as follows:

                (1) Condemnation under the power of condemnation given by law to a
                condemnor shall be effected only by the filing in court of a
                declaration of taking with the security required under section 303(a)
                (relating to security required).

                (2) The title which the condemnor acquires in the property
                condemned shall pass to the condemnor on the date of the filing, and
                the condemnor shall be entitled to possession under section 307
                (relating to possession, right of entry and payment of compensation).

26 Pa.C.S. §302(a).



                                                 2
of 73 square feet and a temporary easement of 177 square feet. (R.R. at 5a-6a.) The
Declaration stated that the purpose of the condemnation was to acquire a perpetual
easement in order to install a sidewalk for use by the school and the general public.
(R.R. at 6a.) The plans attached to the Declaration indicated that the permanent
sidewalk easement would widen an already existing sidewalk that fronts the
Landowners’ property. (R.R. at 14a, 16a.) The plans also showed a temporary
construction easement of 10 ½ by 17 ½ feet into Landowners’ yard. (R.R. at 18a,
20a.)
                 On September 12, 2017, the Landowners filed preliminary objections to
the Declaration pursuant to section 306 of the Eminent Domain Code, 26 Pa.C.S.
§306.2 The preliminary objections alleged that the District did not have the authority

        2
            Section 306(a) of the Eminent Domain Code provides the following:

                 (a) Filing and exclusive method of challenging certain matters.-

                        (1) Within 30 days after being served with notice of
                        condemnation, the condemnee may file preliminary
                        objections to the declaration of taking.

                        (2) The court upon cause shown may extend the time
                        for filing preliminary objections.

                        (3) Preliminary objections shall be limited to and
                        shall be the exclusive method of challenging:

                               (i) The power or right of the
                               condemnor to appropriate the
                               condemned property unless it has
                               been previously adjudicated.

                               (ii) The sufficiency of the security.

                               (iii) The declaration of taking.

(Footnote continued on next page…)

                                                   3
to condemn a portion of the Landowners’ property. Specifically, the preliminary
objections averred that the District could only condemn property for a “proper school
purpose,”3 such as buildings, playgrounds, and parking lots, and that a “proper school
purpose” did not include a part of a sidewalk and temporary construction easement
approximately 1,000 feet away from the new middle school. (R.R. at 85a.) Attached
to the preliminary objections was a plan showing the Landowners’ property in
relation to the new school. (R.R. at 125a.) The preliminary objections also asserted
that the District failed to provide sufficient security and notice of the Declaration.
               The District responded to the Landowners’ preliminary objections on
October 2, 2017. The District denied that the new middle school would be located
1,000 feet from the Landowners’ property, alleging that the Landowners’ property
was directly across the street from the District’s “frontage,” which was in the vicinity
of the new middle school.4 (R.R. at 172a.) The District also asserted that it had the



(continued…)

                              (iv) Any other procedure followed by
                              the condemnor.

26 Pa.C.S. §306(a). This Court has explained that “[p]reliminary objections filed pursuant to . . .
the Eminent Domain Code . . . serve a different function than those filed in other civil actions. They
are the exclusive method for resolving challenges to the power or right of the condemnor to
appropriate the condemned property . . . .” Beaver Falls Municipal Authority ex rel. Penndale
Water Line Extension v. Beaver Falls Municipal Authority, 960 A.2d 933, 936 (Pa. Cmwlth. 2008).

       3
         Section 703 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as
amended, 24 P.S. §7-703, provides that school districts may condemn land for “proper school
purposes.” This statute will be discussed in greater detail in the discussion section of this opinion.

       4
         The District owns the property on the opposite side of Montgomery Avenue, directly
across the street from the Landowners’ property. (R.R. at 14a, 172a.) The District utilizes said
property for a baseball/softball field. (R.R. at 125a.)




                                                  4
authority to condemn the Landowners’ property in order to construct a safe walking
route to the new middle school. (R.R. at 176a, 180a-81a.)
              On February 15, 2018, the trial court overruled the Landowners’
preliminary objections.       The trial court explained that although the Landowners
opposed the condemnation of their property, they “cited no authority directly, or even
indirectly, holding that building a sidewalk to a school is not a proper school purpose,
instead simply observing that the statutes authorizing the condemnation of property
by schools nowhere used the words ‘sidewalks’ or ‘temporary construction
easement.’” (Trial court order at 1-2.) The trial court noted the District’s assertion
that the Pennsylvania Department of Transportation (PennDOT) had determined the
existing walking route to the new middle school was hazardous and that, if the
District did not construct the sidewalk to provide a safe walking route, all students
would have to be bused to the new middle school.5 (Trial court order at 2.)


                                           Discussion
              On appeal,6 the Landowners argue that the trial court erred by
concluding that the District has the authority to permanently condemn a 73-square-
foot portion of the Landowners’ property and temporarily condemn a 177-square-foot
portion of their property in order to increase the width of an existing sidewalk that is
located over 800 feet from the new middle school that the District is building.



       5
         Although the District asserted that PennDOT certified the route as hazardous, it failed to
present evidence of any such certification by PennDOT before the trial court.

       6
          “Our review of a trial court’s decision to sustain or overrule preliminary objections to a
declaration of taking in an eminent domain case is limited to determining whether the trial court
abused its discretion or committed an error of law.” Beaver Falls Municipal Authority, 960 A.2d at
936.



                                                 5
               The Landowners argue that a school district’s eminent domain power
should be strictly construed. They argue that the District lacks the authority under the
Public School Code of 1949 (School Code)7 to condemn their property to widen a
sidewalk. In particular, the Landowners contend that the School Code does not
mention either sidewalks or temporary construction easements. They assert that
building a sidewalk for and/or expanding a sidewalk to a school is not a “proper
school purpose” as defined by the School Code.
               The Landowners also maintain that the trial court erred in construing
section 1362 of the School Code, 24 P.S. §13-1362, which concerns the free
transportation of students, as providing authority for the District to condemn a portion
of the Landowners’ property to widen an existing sidewalk.8 The Landowners argue
that even if the walking route to the school were dangerous, the fact that students
would have to be bused to school does not translate into a power to condemn their
property to build and/or expand a sidewalk. They also argue that there is nothing in
the record to show that PennDOT has certified that the current walking route near the
site of the new middle school is hazardous.
               The Landowners further contend that although section 703 of the School
Code, 24 P.S. §7-703, permits school districts to condemn property for “proper
school purposes,” this does not allow the District to condemn property to construct or
expand a sidewalk 800 to 1,000 feet from the school. The Landowners caution that
permitting the District to condemn their property for a sidewalk would result in a
limitless expansion of a school district’s eminent domain power. The Landowners



      7
          Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§1-101—27-2702.

      8
        At oral argument on December 13, 2018, the Landowners’ counsel noted that the
condemnation would increase the width of the current four-foot-wide sidewalk by one foot.



                                               6
assert that a school district’s eminent domain power is limited to acquiring property
for school buildings, playgrounds, and parking lots.
            Finally, the Landowners argue that the District exceeded its authority
by filing a Declaration to acquire a permanent sidewalk for use by the school and
general public.    Examining the language of the School Code, the Landowners
contend that the District is not permitted to condemn land for a public purpose,
but may only condemn property for a school purpose and, specifically, that the
District cannot condemn land to expand a sidewalk for a public purpose.           The
Landowners assert that in order to condemn property for a public purpose, the District
was required to have Pennsburg Borough exercise its authority to do so since the
District lacked the power to condemn the property for such purpose on its own. In
other words, it is a borough and not a school district that has express authority to
condemn land for a public purpose.
            In contrast, the District argues that it has the authority to condemn the
Landowners’ property. It claims that section 703 of the School Code allows school
districts to condemn property “for proper school purposes” and, accordingly, allows it
to condemn the Landowners’ property for use as a sidewalk. It also argues that
section 1362 of the School Code requires school districts to provide a safe walking
route to the school for students living within 1 ½ miles from the school and that,
therefore, constructing a sidewalk to the school is a proper school purpose. While the
Landowners’ property, here, is located much closer to the new middle school than 1
½ miles, the District’s statutory construction argument has broad implications
regarding the extent of a school district’s condemnation power. The District asserts
that PennDOT has found that the existing walking route to the school is dangerous
and that this necessitates condemning part of the Landowners’ property for a
sidewalk.



                                          7
            The District also contends that the Landowners’ interpretation of “proper
school purpose” is too narrow and cites to In re School District of Pittsburgh,
Allegheny County, 244 A.2d 42 (Pa. 1968), as an example of section 703 of the
School Code being interpreted broadly.     The District claims there are many proper
school purposes beyond those that are specifically identified in the School Code.
            A school district’s eminent domain power derives from section 703 of
the School Code, titled, “Acquisition of buildings, sites for school buildings and
playgrounds and disposing thereof,” and provides as follows:
            In order to comply with the provisions of this act, and
            subject to the conditions thereof, the board of school
            directors of each district is hereby vested with the
            necessary power and authority to acquire, in the name
            of the district, by purchase, lease, gift, devise, agreement,
            condemnation, or otherwise, any and all schools and real
            estate, either vacant or occupied, including lands theretofore
            occupied by streets and alleys which have been vacated by
            municipal authorities, and to acquire by purchase, lease, gift
            or devise, other buildings approved for school use by the
            Department of Education as the board of school directors
            may deem necessary to furnish school buildings or other
            suitable sites for proper school purposes for said district
            or to enlarge the grounds of any school property held by
            such district, and to sell, convey, transfer, dispose of, or
            abandon the same, or any part thereof, as the board of
            school directors may determine. Approval of the
            Department of Education shall not be required for school
            buildings and playgrounds on any school construction
            project for which State reimbursement is not requested.

24 P.S. §7-703 (emphasis added). There is limited case law interpreting section 703
of the School Code. However, in In re School District of Pittsburgh, 244 A.2d at 44,
our Supreme Court analyzed the meaning of “proper school purpose” under section
703 of the School Code. In that case, the school board filed a declaration of taking to
condemn property for the “purpose of providing necessary, useful and convenient

                                          8
parking facilities for school district employees and visitors to the School
Administration Building.” Id. at 43. The landowners argued that the school board’s
eminent domain powers did not extend to the acquisition of property for parking
facilities for administrative employees. Id.
             In interpreting section 703 of the School Code, the Court noted that
although “provisions conferring the power of eminent domain must be strictly
construed,” strict construction did not require that a statute be “construed as narrowly
as possible or that it be construed so literally and without common sense that its
obvious intent is frustrated.” Id. at 44. The Court explained that section 703 of the
School Code allowed the school board to acquire real estate “for proper school
purposes” either by condemnation, purchase, lease, gift, devise, agreement, or
otherwise. Id. The Court reasoned that if the school board could not condemn real
estate to use it as a parking lot, then it also could not lease, purchase, or otherwise
acquire real estate for parking purposes. Id.
             In deciding whether the General Assembly intended to deny the school
board the power to condemn property for administrative parking spaces, the Court
found it “significant that the phrase ‘proper school purposes’ in [s]ection 703 of the
[School Code] replaced the phrase ‘school buildings and playgrounds,’” in the
preceding public school code. Id. The Court determined that “[t]his substitution,
fairly read, not only left the [school b]oard’s power less precisely defined, but also
broadened it somewhat.” Id. Accordingly, the Court concluded that “the acquisition
of a building to be used solely for administration undoubtedly [was] for a proper
school purpose[,] although an administration building may not be unquestionably
within the term ‘school[]building,’ which could be read to imply a school house
where classes are held.” Id. Similarly, the Court held that “the acquisition of land for
off street parking [for school district facilities], which is a practical necessity to the



                                            9
effective and efficient operation of a school system, is certainly a ‘proper school
purpose.’”9 Id. at 45.
              The District, here, relies on section 1362 of the Code, which appears to
be facially inapplicable as it is titled, “Kinds of transportation; liability
insurance.” Nonetheless, the District argues that constructing a sidewalk to the
school is a “proper school purpose,” because the statute requires it to either (1)
provide a non-hazardous walking route to students living within 1 ½ miles of a school
or (2) bus those students to school. Pursuant to section 1362 of the Code,
              The free transportation of pupils, as required or authorized
              by this act, or any other act, may be furnished by using
              either school conveyances, private conveyances, or electric
              railways, or other common carriers, when the total distance
              which any pupil must travel by the public highway to or
              from school, in addition to such transportation, does not
              exceed one and one-half (1 ½ ) miles, and when stations or
              other proper shelters are provided for the use of such pupils
              where needed, and when the highway, road, or traffic
              conditions are not such that walking constitutes a hazard to
              the safety of the child, as so certified by [PennDOT].
              [PennDOT] shall take into account the presence of
              sidewalks along the highway, but such presence or lack
              thereof shall not be controlling and the department shall
       9
           Pennsylvania appellate courts have never addressed whether a school district may
condemn a property in order to construct a sidewalk to a school. In Arena v. Plymouth Township
School Directors, 6 Pa. D. & C.2d 712 (1955), discussed by the District in its brief, the Court of
Common Pleas of Montgomery County decided a similar issue. 6 Pa. D. & C.2d at 716. In Arena,
the Plymouth Township School District sought to condemn a section of a landowner’s property in
order to, inter alia, construct a sidewalk between the elementary school and a public road. Id. The
court of common pleas determined that a passageway from the school was “reasonably necessary to
accommodate the children living in that area.” Id. at 718. In fact, the court noted that if the
property were not condemned, children would be exposed to traffic hazards and that if the
condemnation “save[d] the life of one child it [was] justified.” Id. Therefore, the court concluded
the condemnation was for a proper purpose. Id. However, court of common pleas decisions are not
binding on this Court. See In re Funds in Possession of Conemaugh Township Supervisors, 724
A.2d 990, 994 (Pa. Cmwlth. 1999), aff’d, 753 A.2d 788 (Pa. 2000).




                                                10
             consider all relevant safety factors in making its
             determination as to whether or not walking constitutes a
             hazard to pupils. All private motor vehicles employed in
             transporting pupils for hire shall be adequately covered by
             public liability insurance in such amount as the board of
             school directors shall require.

24 P.S. §13-1362 (emphasis added). However, the Supreme Court viewed section
1362 as proscribing the limitation on the distance a student could be required to walk
to a bus stop. It held that under section 1362 of the School Code, where a school
district decides to provide free transportation to students, students cannot be required
to walk more than 1 ½ miles from their residence to a bus stop. Watts v. Manheim
Township School District, 121 A.3d 964, 970, 976 (Pa. 2015) (Pursuant to section
1362 of the School Code, “students cannot be required to travel more than 1 ½ miles
from their residence to the bus stop.”).
             Moreover, in Abrahams v. Wallenpaupack Area School District, 422
A.2d 1201 (Pa. Cmwlth. 1980), this Court held,
             To construe section 1362 itself as imposing any obligation
             on a school board would require us to ignore the word,
             “may.” This section of the Public School Code is a
             complement to other sections which permit or require the
             free provision of free transportation. Section 1362 does no
             more than enumerate the means of transportation which
             a school board may employ under certain
             circumstances. In sum, section 1362 does not mandate
             free bus service on the interior roads . . . . Furthermore,
             even if the “hazard” clause of section 1362 did create such a
             duty, that duty would not arise unless the hazard was
             certified by the Department of Transportation. There has
             been no such certification in this case.

Id. at 1204 (emphasis added).




                                           11
           In considering the issue of funding to be received by schools for
transportation of students to and from home, this Court, in another case, relied on
section 1362 to establish that school districts are “not reimbursed for the
transportation costs of a student who resides within one and one-half (1 ½) miles of
his/her school provided that student has access to a [school d]istrict proposed walking
route certified by [PennDOT] as non-hazardous.” Quasti v. North Penn School
District, 907 A.2d 42, 43-44 (Pa. Cmwlth. 2006) (citing 24 P.S. §13-1362). In other
words, if PennDOT certified a walking route within 1 ½ miles of a school as non-
hazardous, the district would not be reimbursed for transportation costs. Yet, in light
of the Supreme Court’s subsequent interpretation of section 1362 in Watts, and
contrary to the District’s assertion, section 1362 of the School Code does not
expressly require school districts to provide a safe walking route with sidewalks to
school for students living within 1 ½ miles of their school and, thus, provides limited
support for the District’s argument.10



      10
         We note that section 2541 of the School Code, titled, “Payments on account of pupil
transportation,” provides, in relevant part, as follows:

             (a) School districts shall be paid by the Commonwealth for every
             school year on account of pupil transportation . . .

             (b) Such payments for pupil transportation shall be made in the
             following cases:

             (1) To school districts of the fourth class and districts of the third
             class . . . for the transportation of elementary school pupils . . . who
             reside one and one-half (1 ½ ) miles or more from the school to which
             they are assigned or who reside in areas where the road or traffic
             conditions are such that walking constitutes a hazard to the safety of
             the child when so certified by the Department of Transportation. The
             Department of Transportation shall take into account the presence of
             sidewalks along the highway, but such presence or lack thereof shall
             not be controlling and the department shall consider all relevant safety
(Footnote continued on next page…)

                                               12
(continued…)

           factors in making its determination as to whether or not walking
           constitutes a hazard to pupils.

           (2) To school districts of the fourth class and districts of the third
           class . . . for the transportation of any child living more than two (2)
           miles by the nearest public highway from the nearest school in
           session, or any child who resides in an area where the road or traffic
           conditions are such that walking constitutes a hazard to the safety of
           the child when so certified by the Bureau of Traffic Safety, and to
           districts of the third class operating schools jointly with districts of the
           fourth class or with other districts of the third class entitled to
           payment on account of transportation for the transportation of any
           child living more than two (2) miles by the nearest public highway
           from the nearest jointly operated school in session offering the proper
           grades including pupils who are attending area technical schools or
           any child who resides in an area where the road or traffic conditions
           are such that walking constitutes a hazard to the safety of the child
           when so certified by the Department of Transportation. The
           Department of Transportation shall take into account the presence of
           sidewalks along the highway, but such presence or lack thereof shall
           not be controlling and the department shall consider all relevant safety
           factors in making its determination as to whether or not walking
           constitutes a hazard to pupils.
           ...

            (4) To all third and fourth class school districts, for pupils transported
           . . . living one and one-half miles or more from the school of
           attendance or residing in areas where the road or traffic conditions are
           such that walking constitutes a hazard to the safety of the child when
           so certified by the Department of Transportation. The Department of
           Transportation shall take into account the presence of sidewalks along
           the highway, but such presence or lack thereof shall not be controlling
           and the department shall consider all relevant safety factors in making
           its determination as to whether or not walking constitutes a hazard to
           pupils. . . .
                                               ...

           (c) Payments for pupil transportation on account of the school year
           1979-1980 and every school year thereafter shall be made only in the
           following cases:

(Footnote continued on next page…)

                                               13
(continued…)

              (1) To all school districts for the transportation to and from school of
              elementary school pupils, including kindergarten pupils, residing one
              and one-half (1 ½ ) miles or more by the nearest public highway from
              the school in which the pupils are enrolled and to which transportation
              is authorized under section 1361 of this act or residing in areas where
              the road or traffic conditions are such that walking constitutes a
              hazard to the safety of the child when so certified by the Department
              of Transportation. The Department of Transportation shall take into
              account the presence of sidewalks along the highway, but such
              presence or lack thereof shall not be controlling and the department
              shall consider all relevant safety factors in making its determination
              as to whether or not walking constitutes a hazard to pupils. . . .

              (2) To all school districts for the transportation to and from school of
              secondary school pupils residing two (2) miles or more by the nearest
              public highway from the school in which the pupils are enrolled and
              to which transportation is authorized under section 1361 of this act or
              residing in areas where the road or traffic conditions are such that
              walking constitutes a hazard to the safety of the child when so
              certified by the Department of Transportation. The Department of
              Transportation shall take into account the presence of sidewalks along
              the highway, but such presence or lack thereof shall not be controlling
              and the department shall consider all relevant safety factors in making
              its determination as to whether or not walking constitutes a hazard to
              pupils. . . .

              (3) To all school districts for pupils transported to and from approved
              consolidated schools or approved joint consolidated schools living
              one and one-half (1 ½ ) miles or more from the school of attendance
              or residing in areas where the road or traffic conditions are such that
              walking constitutes a hazard to the safety of the child when so
              certified by the Department of Transportation. The Department of
              Transportation shall take into account the presence of sidewalks along
              the highway, but such presence or lack thereof shall not be controlling
              and the department shall consider all relevant safety factors in making
              its determination as to whether or not walking constitutes a hazard to
              pupils. . . .

24 P.S. §25-2541 (emphasis added).

       Therefore, the Department of Education shall reimburse certain school districts for the
transportation of students living 1 ½ miles or more from their school or residing in areas where
(Footnote continued on next page…)

                                                14
               As noted above, section 703 of the School Code does not include
sidewalks as a type of use for which school districts are permitted to acquire property
pursuant to their condemnation power and no Pennsylvania appellate court has ever
addressed the issue.        In contrast, the Landowners argue that in considering the
location of their property, the Borough of Pennsburg, rather than the District, has the
authority to condemn property for sidewalks.
               As the Landowners emphasize, while school districts do not have
express authority to condemn property for sidewalks, boroughs do have such
authority. By way of analogy, in In re Heidelberg Township for Footpath, Alleyway
& Bridge Purposes, 428 A.2d 282 (Pa. Cmwlth. 1981), we examined a second class
township’s condemnation authority with regard to sidewalks. There, a second class
township sought to condemn property for the purpose of constructing a footpath and
alleyway for use by school children walking to a school located in the township. Id.
at 284.     The property owners argued that the township lacked the authority to
condemn property for the purpose of establishing a footpath. Id. at 285. While we


(continued…)

the road or traffic conditions are such that walking constitutes a hazard to the safety of the child
when so certified by PennDOT. While PennDOT shall take into consideration the presence of
sidewalks along the highway, such shall not be controlling. Id.; see also Department of
Education—Department of Transportation’s Bureau of Traffic Safety—School Districts—The
School Code—Fee Transportation—Hazardous Walking Routes, 1978 Pa. Op. Atty. Gen. 97 (Pa.
A.G. 1978) (relying on sections 1362 and 2541 of the School Code to conclude that where a school
district provides free transportation to school, students living within 1 ½ miles of their school may
be required to walk to school and students may be required to walk up to 1 ½ miles from their home
to a bus stop, but only if the route is non-hazardous. Further, although the School Code does not
require that free transportation be extended generally to students living within 1 ½ miles of the
school, considerations of safety require school directors to provide the same to students living
within 1 ½ miles of the school if the students would have to walk along a hazardous walking route).
Here, however, the District has not indicated the particular class or type of its school district, nor is
there any certification in the record regarding a hazardous route.



                                                  15
noted that the power to condemn property for a footpath was not expressly granted by
the Second Class Township Code,11 we concluded that it was fairly implied since the
Second Class Township Code, as it was written at that time, permitted townships to
construct sidewalks and footpaths whenever it was determined that a sidewalk and
footpath were necessary for the protection of the traveling public, meaning that a
highway was dangerous and such danger could be reduced by building a sidewalk or
footpath. Id.12 We held that based on the express grant of power to construct
sidewalks, “the legislature necessarily implied a grant of the power to condemn for


       11
            Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §§65101-68701.

       12
            Section 2401 of the Second Class Township Code currently provides,
                The board of supervisors may by ordinance regulate the line, grade
                and width of curbs, sidewalks or footpaths constructed along the roads
                or highways in the township, shall have general supervision over them
                and may establish a grade or grades for curbs, sidewalks or footpaths,
                which grade or grades may be separate and apart from the grade or
                grades established for the cartway or roadway.

53 P.S. §67401. Section 2401 also provides,

                When the board of supervisors establishes that any part of any road or
                highway is dangerous to the traveling public and the danger could be
                materially reduced or lessened by the construction of a sidewalk, curb
                or footpath, the board of supervisors may lay out and construct a
                sidewalk, curb or footpath along the dangerous portion of the road or
                highway at township expense.

Id. Moreover, section 2312 of the Second Class Township Code currently provides in relevant part,
as follows:

                Any township may acquire, by purchase or by the right of eminent
                domain, any property and lands along or adjacent to any township
                road that may be necessary to eliminate dangerous curves and widen
                roads and provide a free and unobstructed view over lands . . . for the
                better protection and safety to the traveling public.

53 P.S. §67312.



                                                  16
sidewalks and footpaths because such power often is needed to fulfill the
[t]ownship’s specifically authorized purposes” and the township had determined that
the construction of a footpath was necessary for the protection of the traveling public.
Id. at 285-86.
               Similarly, here, the Borough Code13 provides Pennsburg Borough, the
municipality in which the Landowners’ property is located, the authority to construct
and condemn property for sidewalks. Under the Borough Code,
               A borough may enter upon, appropriate, injure or destroy
               private lands, property or material, or lands previously
               granted or dedicated to public use that are no longer used
               for the purpose for which the lands were granted, according
               to the proceedings set forth in 26 Pa.C.S. (relating to
               eminent domain), for any of the following purposes:

                      (1) The laying out, opening, widening,
                      extending, vacating, grading or changing the
                      grades or lines of streets. . . .

Section 1501 of the Borough Code, 8 Pa.C.S. §1501. Further, section 1801 of the
Borough Code provides,

               (1) Any borough may, by ordinance, lay out and establish
               sidewalks, curbs, gutters and surface water drains along
               any street and, with the consent of the Secretary of
               Transportation, along any State highway.

               (2) The borough may also require owners of property
               abutting on any street or State highway to grade,
               construct, drain, pave and repave the sidewalk, curb or
               gutter and keep them in repair and in safe and usable
               condition along the property at the grades and under the
               regulations and specifications as council may prescribe.

      13
           8 Pa.C.S. §§101-3501.



                                           17
8 Pa.C.S. §1801 (emphasis added).14 Under section 1802 of the Borough Code,
               Any borough may, by ordinance, lay out sidewalks, gutters
               and surface water drains upon land abutting the sides of
               State highways and upon land abutting the sides of public
               roads, where the roads are outside the borough limits, but
               the land upon which the sidewalks, gutters and surface
               water drains are to be laid out is within the borough limits.

8 Pa.C.S. §1802 (emphasis added). Also, pursuant to section 1803, “Any borough
may establish a grade or grades for sidewalks, which may be separate and apart from
the grade or grades established for the cartway or roadway,” and a “borough may pay
all or any part of the cost and expenses of grading and curbing a sidewalk.” Sections
1803-1804 of the Borough Code, 8 Pa.C.S. §§1803-1804 (emphasis added).
               Additionally, where a property owner fails to comply with any of the
sidewalk provisions of the Borough Code, a “borough may, after notice, cause the
grading, paving, repairing, curbing and guttering to be done at the expense of the
owner” and “may collect the cost of the work and an additional 10% of the cost,
together with all charges and expenses, from the owner and may file a municipal
claim for the amounts or collect the amounts by action in assumpsit.” Section 1805
of the Borough Code, 8 Pa.C.S. §1805.                  Moreover, under section 1806 of the
Borough Code,
               [A]ny borough shall have power to make emergency
               repairs to any sidewalks within the borough if an

       14
           While Chapter 15 of the Borough Code does not define streets, Chapter 17 of the Borough
Code defines streets to include “a street, road, lane, court, cul-de-sac, alley, public way and public
square, either for or intended for public use, and includes the cartway, sidewalk, gutter, and the
right-of-way area, whether or not the street or a part of the street is owned in fee by others than the
borough.” 8 Pa.C.S. §1701 (emphasis added). However, section 1701 of the Borough Code notes
that this definition of street only applies to Chapter 17 of the Borough Code. 8 Pa.C.S. §1701.




                                                 18
            inspection of the sidewalk discloses that, and a certificate
            made by the officer or head of the department or committee
            lawfully having charge of sidewalk repairs specifies that, a
            dangerous condition exists that can be repaired by an
            expenditure of not more than $1,000.

                                         ...

            Upon the completion of the work, the cost shall be a
            charge against the owner of the property and shall be a
            lien, until paid, upon the abutting property if a claim is
            filed. The charge may also be collected by action of
            assumpsit.

8 Pa.C.S. §1806 (emphasis added).
            In short, the Borough Code provides an extensive statutory framework
regarding a borough’s authority to construct and regulate sidewalks. Boroughs have
the power to lay out and establish sidewalks, and may require property owners
abutting streets to construct and repair sidewalks. Boroughs are also authorized to
expend funds to construct sidewalks, to make emergency repairs to sidewalks, and to
charge property owners for sidewalk repairs, which shall be a lien on the property
until paid. Further, section 1501 of the Borough Code provides that a borough may
exercise its eminent domain power for the purpose of “[t]he laying out, opening,
widening, extending, vacating, grading or changing the grades or lines of streets.” 8
Pa.C.S. §1501. A different section of the Borough Code defines streets as including
sidewalks. See section 1701 of the Borough Code, 8 Pa.C.S. §1701. In Ducansville
v. Beard, 919 A.2d 327 (Pa. Cmwlth. 2007), an eminent domain case, this Court
noted that under the previous version of the Borough Code, boroughs were authorized
to condemn land for “streets,” and that streets were defined to include sidewalks. Id.
at 331.




                                         19
             Based on the language in the Borough Code authorizing boroughs to
condemn land for streets and to construct sidewalks, as well as our precedent from In
re Heidelberg Township, which interpreted a similar statutory framework, it is
undisputable that a borough may condemn land to construct a sidewalk. While the
Borough Code provides clear statutory authority for boroughs to construct, regulate,
and condemn sidewalks, there is no corresponding language in the School Code
providing school districts authority over sidewalks. Although the District requests
that we interpret section 703 of the School Code as authorizing it to condemn
property for sidewalks, unlike the Borough Code, which provides considerable detail
about the actions boroughs may take to construct and fund sidewalks, there is nothing
in the School Code regulating sidewalks. The District seeks to condemn property for
a sidewalk, but the School Code is silent with respect to whether a school district is
authorized to even construct sidewalks, let alone make determinations about sidewalk
layout, grading, paving, curbing, repairs, costs, or liens.
               Section 1928 of the Statutory Construction Act of 1972 provides that
provisions of a statute conferring the power of eminent domain shall be strictly
construed. 1 Pa.C.S. §1928. Relying on the Statutory Construction Act, our Supreme
Court has held that “[b]ecause eminent domain is in derogation of private rights, any
legislative authority for its use must be strictly construed in favor of the landowner.”
Reading Area Water Authority v. Schuylkill River Greenway Association, 100 A.3d
572, 579 (Pa. 2014); see also In re Heidelberg Township, 428 A.2d at 285 (holding
that the “exercise of the power of eminent domain is necessary in derogation of the
right to hold property and that the authority to exercise that power should be strictly
construed”); Golding v. New Britain Township, 382 A.2d 509, 511 (Pa. Cmwlth.
1978) (same). Further, “[A] fundamental principle of statutory construction is that,
where a section of a statute contains a given provision, the omission of that provision
from a similar section is significant to show a different intention existed.” Corley v.

                                            20
Pennsylvania Board of Probation and Parole, 478 A.2d 146, 149 (Pa. Cmwlth.
1984); see also Section 1921 of the Statutory Construction Act, 1 Pa.C.S. §1921
(“When the words of the statute are not explicit, the intention of the General
Assembly may be ascertained by considering, among other matters . . . other statutes
upon the same or similar subjects.”).
             Although in In re School District of Pittsburgh, 244 A.2d at 44, our
Supreme Court noted that section 703 of the School Code should not be interpreted so
narrowly as to frustrate its obvious intent, there is nothing in section 703 exhibiting
an obvious intent to allow school districts to condemn property for sidewalks or
walking routes. Because the rules of statutory construction mandate that statutes
conferring eminent domain powers be strictly construed and there is no real mention
of sidewalks in section 703 or any other provision of the School Code, we conclude
that the construction of sidewalks is not a proper school purpose for which a school
district has the authority to condemn property.
             The District argues that it has the power to condemn lands for school
walking routes up to 1 ½ miles from a school. Irrespective of the fact that section
1362 of the School Code, as interpreted by our Supreme Court, does not provide
support for such a position, the District’s argument has such broad implications vis-à-
vis a school district’s condemnation powers that it contravenes the rule that we
construe eminent domain statutes narrowly. Further, the decision of the General
Assembly to include several statutes within the Borough Code regulating sidewalks,
while not including any similar provisions in the School Code, demonstrates that the
General Assembly did not intend for school districts to have a role in either
constructing or condemning land for sidewalks. For example, were we to otherwise
determine that section 703 of the School Code permits a school district to condemn
land for a sidewalk, there would be no mechanism in the School Code for a school
district to make decisions related to the construction, funding, or ongoing

                                          21
maintenance of the sidewalks. In contrast, the Borough Code allows for a borough to
impose costs and ongoing maintenance to the property owners. The lack of any
statutory provisions in the School Code related to sidewalks, when compared to the
Borough Code, which does contain such provisions, provides strong evidence that the
General Assembly did not intend to authorize school districts to construct sidewalks.
             Although we conclude that the District lacks the authority to condemn
land for a sidewalk, under the Borough Code, Pennsburg Borough does possess the
authority to condemn property to construct a sidewalk for the walking route to the
new middle school.


                                     Conclusion
             Accordingly, because the construction of a sidewalk is not a proper
school purpose for which a school district may condemn property, we reverse the trial
court’s order overruling the Landowners’ preliminary objections to the District’s
declaration of taking.




                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge




                                         22
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Upper Perkiomen School District        :
                                       :    No. 260 C.D. 2018
            v.                         :
                                       :
Dennis M. Giansante and Shirley J.     :
Giansante,                             :
                 Appellants            :


                                     ORDER


            AND NOW, this 10th day of April, 2019, the order of the Court of
Common Pleas of Montgomery County, dated February 15, 2018, is reversed.



                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge
