          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Forty Foot Farms,                              :
                             Appellant         :
                                               :
               v.                              :   No. 501 C.D. 2018
                                               :   Submitted: March 14, 2019
Pennsylvania Turnpike Commission               :

BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE ANNE E. COVEY, Judge (P.)
               HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                               FILED: April 2, 2019

               Before this Court is the appeal of Forty Foot Farms (Condemnee) from
two orders of the Court of Common Pleas of Montgomery County (trial court).1 The
trial court granted two pretrial motions by the Pennsylvania Turnpike Commission
(Condemnor) to preclude Condemnee’s proposed expert testimony in an eminent
domain proceeding. Condemnee requested that the trial court certify one of the
evidentiary rulings for immediate appeal, but the trial court refused. Seeking to
circumvent the trial court’s denial of certification, the parties stipulated to entry of
judgment as to the difference in value of Condemnee’s real property (the Property)
in Towamencin Township, Montgomery County (Township) before and after the
condemnation. Both parties contend their stipulation constituted a final judgment,
thus rendering both interlocutory evidentiary rulings appealable. Upon review, we
quash the appeal as interlocutory and remand to the trial court.




      1
          The Honorable Carolyn Tornetta Carlucci presided.
                                   I. Background
             This is an eminent domain proceeding in which Condemnor is taking a
portion of the Property for its own use. The sole issue before the trial court is the
amount of just compensation Condemnor must pay to Condemnee for the portion of
the Property taken.


             The parties apparently agree the proper measure of just compensation
is the difference in value of Condemnee’s property before and after the partial taking.
In order to advocate for the maximum possible pre-taking value of the Property,
Condemnee sought to establish that the highest and best use of the Property was
Condemnee’s planned development of the Property for commercial use as a
restaurant and a bank. As of the date of the taking, some but not all of the required
zoning and planning approvals were in place for the development to go forward.
Both Condemnee and the Township were appealing certain zoning and planning
determinations.


             Condemnee produced a report from a proposed expert witness, Thomas
Oeste, Esquire (Oeste), who would testify at trial that if not for the condemnation,
Condemnee would have succeeded in obtaining the remaining approvals necessary
for development. The major thrust of Oeste’s opinion was that the courts would
have ruled in Condemnee’s favor in the appeals concerning the required approvals.


             Condemnor filed a pretrial motion to preclude Oeste’s proposed
testimony. The trial court issued an order granting the motion (Oeste Order). The
trial court found Oeste’s testimony would not be probative of how a court would rule
on zoning and planning issues, because both Condemnee and the Township

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withdrew their pending appeals of the zoning and planning determinations. The trial
court also found the withdrawal of those appeals made the Township Board of
Supervisors’ prior rulings on zoning and planning issues “the law of the case.”
Reproduced Record (R.R.) at 161a. Thus, the trial court concluded Oeste’s proposed
testimony was both speculative and inconsistent with the existing record.


            Condemnee subsequently produced a report from a second proposed
expert witness, John H. Kennedy (Kennedy). Like Oeste, Kennedy opined that
Condemnee could have obtained the zoning and planning approvals needed to move
forward with development of the Property. However, Kennedy did not base his
opinion on a prediction of how the courts would rule. Instead, he analyzed the
current status of the approval process, in which some of the necessary approvals
were already in place. He opined that the approval process halted only because of
Condemnor’s eminent domain proceeding.          Kennedy concluded the approval
process was at a stage where notwithstanding withdrawal of the zoning and planning
appeals, Condemnee could easily make the remaining minor alterations to the
development plan that the Township was requesting. Thus, in Kennedy’s opinion,
but for the condemnation, Condemnee was easily capable of placing itself in a
position in which it would be entitled, as of right, to the remaining zoning and
planning approvals.


            Condemnor moved to preclude Kennedy’s proposed testimony, arguing
it suffered from the same flaws as Oeste’s opinion. The trial court issued an order




                                         3
granting the motion and precluding Kennedy’s testimony (Kennedy Order), without
explanation.2


               Condemnor requested that the trial court certify the Kennedy Order for
immediate appeal. The trial court denied Condemnor’s request. R.R. at 255a.
However, Condemnor did not then seek relief from this Court under Pa. R.A.P.
1501(a)(4), which expressly authorizes a petition for review in the appropriate
appellate court from a trial court’s refusal to certify an interlocutory order for
immediate appeal.


               Instead, the parties attempted to circumvent the trial court and facilitate
an immediate appeal of both the Kennedy Order and the Oeste Order (jointly,
Orders). The parties filed a “Stipulation of Judgment between [Condemnor] and
[Condemnee]” (Stipulation) in which they agreed on the difference in the value of
the Property before and after the taking. R.R. at 257a-59a. In the Stipulation, the
parties stated, in pertinent part:

                      9.    Condemnee cannot proceed with a case unless it
               can present evidence regarding the probability of obtaining
               the land use approvals.

                      10. Accordingly, it is inevitable that Condemnee
               will be required to appeal the Orders.
       2
         Inasmuch as the trial court never explained its rationale for the Kennedy Order in either
the Kennedy Order itself or the subsequent Rule 1925(a) opinion, the record lacks sufficient
information to permit a reasoned review of the issue. Consequently, a consideration of the merits
of the appeal would require this Court to retain jurisdiction while remanding the case for a
supplemental 1925(a) opinion by the trial court explaining the reasoning behind the Kennedy
Order. See, e.g., Pridgen v. Parker Hannifin Corp., 905 A.2d 422 (Pa. 2006); Devereux Found. v.
Chester Cty. Intermediate Unit No. 24 (Pa. Cmwlth., No. 698 C.D. 2014, filed May 28, 2015),
2015 Pa. Commw. Unpub. LEXIS 374 (unreported).


                                                4
                    11. The parties believe that it would be a waste of
             judicial resources to proceed to a trial given the impact of the
             Orders in the determination of just compensation.

                    12. The parties further agree that by entering into
             this [S]tipulation, Condemnee has not waived its right to
             appeal the Orders, or to challenge the amount of just
             compensation in the event that Condemnee is successful on
             appeal.

                   13. [Condemnor] has previously paid Condemnee
             sums representing [e]stimated [j]ust [c]ompensation, taking
             the position that the difference between the value of the
             Property before and after the taking is $315,000.

                   NOW THEREFORE, it is hereby stipulated and
             agreed that:

                   14. Judgment is entered that the difference between
             the value of the Property before and after the taking is
             $315,000.

                     15. Notwithstanding the preceding paragraph or
             anything else in this document, Condemnee has not waived
             its right to appeal the Orders, and, if decisions of the appellate
             courts reverse the Orders and remand for a trial, Condemnee
             has not waived any rights to seek additional compensation
             including presenting evidence at a jury trial regarding the fair
             market value of the Property before and after the taking –
             which evidence may differ from the [e]stimated [j]ust
             [c]ompensation previously paid to Condemnee by
             [Condemnor].

Id. at 258a-59a.

             After filing the Stipulation, Condemnee filed a notice of appeal from
the Orders. The trial court issued an opinion pursuant to Pa. R.A.P. 1925(a),




                                           5
suggesting this Court should quash the appeal as interlocutory. The trial court did
not explain further its reasons for either of the Orders.


                This Court directed the parties to address the issue of appealability in
their briefs.


                                      II. Discussion
                Condemnee ostensibly argues on appeal that a qualified expert may
testify to the probability that the owner of a condemned property could obtain the
necessary approvals for a commercial use. However, the overarching issue is the
appealability of the interlocutory evidentiary rulings.


                The parties base their arguments in favor of appealability on their
Stipulation. They contend Laird v. Clearfield & Mahoning Railroad Co., 916 A.2d
1091 (Pa. 2007), supports appealability of the Orders, despite Condemnee’s
reservation of rights to relitigate the issue of just compensation once the appeal is
concluded. We discern no merit in this argument.


                                 A. The Laird Decision
                Laird involved a number of claims among a number of parties. Pretrial
rulings dismissed most claims and parties, leaving for trial only a breach of contract
claim between the last two remaining parties. On the day trial was to start, the
parties, in consultation with the court, agreed to entry of a stipulated order stating
the contract was breached and the non-breaching party was entitled to damages in a
specified amount. Notably, the court fashioned its order with the express intent to



                                            6
preserve the parties’ rights to appeal the pretrial dismissal orders, as well as to allow
reopening of the breach of contract claim in the event the pretrial dismissal orders
were reversed on appeal. Appeals were then taken concerning the various pretrial
dismissals.


              The Superior Court held the stipulated order was a consent decree, and
as such, it precluded appeal of any order entered in the case. Our Supreme Court
disagreed. Without specifically determining whether the order constituted a consent
decree, our Supreme Court found such status would not automatically preclude an
appeal in every case. Our Supreme Court instead announced a general rule that an
appeal is not precluded by a stipulated order where “(1) the trial court’s order is
entered in lieu of trial pursuant to a stipulated agreement which contemplates
appellate review [footnote omitted], and (2) the issue being appealed is not disposed
of in the stipulated order [footnote omitted].” Id. at 1094 (emphasis added).


                         B. Application of the Laird Rule
              Here, the Stipulation does not convey a right of appeal because it does
not meet the requirements of the Laird Rule. As the trial court aptly pointed out in
its Rule 1925(a) opinion, the Stipulation is not an order. The trial court never issued
any order based on the Stipulation. In fact, the trial court was not even aware of the
Stipulation: “The parties’ agreement was entered without the court’s knowledge and
was definitely not entered as a court order. Indeed, the trial court declined to amend
its’ [sic] ruling to state same was a collateral order requiring immediate review.”
R.R. at 269a.




                                           7
             Without an order evidencing approval by the trial court, the Stipulation
facially fails to comply with the Laird Rule. It is simply an attempt by the parties to
obtain appellate jurisdiction by agreement, which is precluded under settled law.
See, e.g., T.C.R. Realty, Inc. v. Cox, 372 A.2d 721 (Pa. 1977); Lower Paxton Twp.
v. Fieseler Neon Signs, 391 A.2d 720 (Pa. Cmwlth. 1978).


             To find otherwise would allow litigants to sidestep the final order
requirement and agree to appeal interlocutory evidentiary rulings at will, regardless
of the ruling of either the trial court or an appellate court concerning appealability.
As Condemnor and Condemnee are attempting to do here, parties could agree to
enter judgment temporarily while reserving the right to relitigate all the issues in the
case on remand after concluding the appeal of an interlocutory evidentiary ruling.
Indeed, the parties could render any interlocutory order appealable by the
mechanism of a carefully worded revocable or conditional stipulation.


             Such a result would be absurd, unwieldy, and unduly burdensome on
the courts. Moreover, it would flout the procedural rules that provide specific,
limited paths to seek immediate appeals of interlocutory orders. See, e.g., 42 Pa.
C.S. §702(b) (allowing interlocutory appeal where trial court certifies order for
immediate appeal and appellate court, in its discretion, accepts appeal); Pa. R.A.P.
1311 (procedure to request interlocutory appeal by permission), 1501(a)(4) (review
of trial court orders refusing to certify interlocutory orders for immediate appeal),
1503 (treatment of improvident interlocutory appeal as petition for permission to
appeal). That could not have been our Supreme Court’s meaning or intention in
Laird.



                                           8
             Accordingly, we reject the parties’ attempt to fit Condemnee’s appeal
within the Laird Rule.


                                   III. Conclusion
             By employing the Stipulation as a basis for appellate jurisdiction, the
parties are improperly attempting to circumvent the trial court’s refusal to certify the
Orders for immediate appeal. Because the trial court did not approve the Stipulation
or enter it as an order, our Supreme Court’s analysis in Laird does not support
appealability of the Orders. Accordingly, we quash the appeal and remand this
matter to the trial court for further proceedings.




                                        ROBERT SIMPSON, Judge




                                           9
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Forty Foot Farms,                           :
                          Appellant         :
                                            :
            v.                              :   No. 501 C.D. 2018
                                            :
Pennsylvania Turnpike Commission            :


                                      ORDER

            AND NOW, this 2nd day of April, 2019, the appeal of Forty Foot Farms
is QUASHED.         This matter is remanded to the Court of Common Pleas of
Montgomery County.


            Jurisdiction is relinquished.




                                       ROBERT SIMPSON, Judge
