KALISH, Senior Judge.
The Pennsylvania Department of Transportation (DOT) filed a declaration of taking to acquire a fee simple estate in fifty percent of the property of the Estate of Julia F. Rochez (condemnee), for the construction of a limited access highway. The condemnee filed a number of preliminary objections, including, inter alia, that the taking was excessive. In an order dated August 6, 1985, the trial court held that section 3 of the Act of December 7, 1979, P.L. 478, (Act of 1979-100), 71 P.S. § 513(e), violated Article III, Section 3 of the Pennsylvania Constitution because the title of the [62] Act failed to give notice that its amendment to The Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 513(e)(1), changed the law concerning condemnation for highway rights-of-way to permit such condemnation in fee simple. The condemnee then filed a motion for an amended order of court on the basis that in its order of August 6, 1985, the trial court failed to provide for the revesting of title to the condemned area.
Whereupon, the trial court vacated its prior order and in an order dated August 30, 1985, again held that Act 1979-100 was deficient and void, and ordered the property revested in the condemnee pursuant to section 406 of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-406.1 DOT appealed this order directly to the Pennsylvania Supreme Court.
Meanwhile, in a further clarification of its August 30, 1985 order, the trial court, on September 27, 1985, stated that its order was intended to be “dispositive of the case and did not require the court to address and dispose of the remaining preliminary objections which were therefore not ruled upon.”
DOT then requested the Pennsylvania Supreme Court in addressing its appeal to vacate the September 27, 1985 order of the trial court on the ground that the trial court had no power to make an amendment while the appeal was pending in the Supreme Court. The Supreme Court disposed of the entire matter, ruling that Act 1979-100 was constitutional and remanded the case to the trial court to consider and decide all the remaining issues, including the question of the remaining preliminary objections. In Re: Department of Transportation, 511 Pa. 620, 515 A.2d 899 (1986).
Pursuant to the Supreme Court’s mandate on remand, the trial court proceeded to consider and dispose of the remain[63] ing issues by taking testimony. The evidence indicated that while DOT needed only twenty feet into the condemnee’s building for its roadway, it nevertheless condemned the entire building so that the area could be used as a staging area for the contractors and by so doing, would lessen the cost of construction.
The condemnee contends that it was not necessary to take its entire building, and that if twenty feet of the building was removed and a new wall erected, the building as “cured” would still be functionable. The condemnee contends that to that extent, DOT abused its discretion and the taking was excessive and void.
The trial court held that only twenty feet was necessary for public use, i.e., the construction of the highway, and therefore, the condemnation was excessive. It cited Winger v. Aires, 371 Pa. 242, 89 A.2d 521 (1952), and Pittsburgh School District Condemnation, 430 Pa. 566, 244 A.2d 42 (1968), for the proposition that excessive condemnation is invalid. On preliminary objections, the effect of such a holding would be to revest title in the excessive portion to the condemnee. Section 406 of the Eminent Domain Code, 26 P.S. § 1-406.
DOT contends that on remand the trial court cannot reconsider its preliminary objections. In addition, DOT contends that the taking of more than twenty feet of the building was not an abuse of discretion and therefore not excessive, and that it owns the land in fee simple.
Our scope of review in an appeal from a trial court in an eminent domain case, is limited to determining whether the court abused its discretion or committed an error of law. Pidstawski v. South Whitehall Township, 33 Pa. Commonwealth Ct. 162, 380 A.2d 1322 (1977).
In Faranda Appeal, 420 Pa. 295, 216 A.2d 769 (1966), and Valley Forge Golf Club v. Upper Merion Township, 422 Pa. 227, 221 A.2d 292 (1966), our Supreme Court held that preliminary objections are the sole and exclusive remedy available to a condemnee to challenge a condemna[64] tion. A condemnation proceeding encompasses two distinct proceedings. One goes to whether there has been a taking, the other to damages. Thus, in the former proceeding, all preliminary objections must be heard promptly and at one time. However, here the trial court’s decision that Act 1979-100 was constitutionally deficient put DOT out of court. It was a final order and it was appealable. It was the Supreme Court that ordered the trial court, on remand, to hear the remaining preliminary objections and to determine the issues.
Some of the early cases refer to the interest that the condemnor took as an “easement,” while the later cases call it a “base” or “conditional” fee. However, as the court indicated in Brookbank v. Benedum-Trees Oil Co., 389 Pa. 151, 131 A.2d 103 (1957), the important thing is not the name given to the estate or the interest acquired, but rather what are the rights acquired by reason of the taking. Thus, in Brookbank, where as a final step in the acquisition of a strip of land by eminent domain, the owner executed a deed which provided that the owner granted, bargained, sold, released and conveyed unto the railroad a strip of land, the court held that it was clear, even from the instrument itself, that the intent was to convey not an absolute fee, but rather a defeasible fee and that when the strip of land ceased to be used for the purpose acquired, the rights of the railroad ceased and the property reverted to the former owner.
In the instant case, it was known by the condemnor that the land to be acquired for the staging area was of a temporary nature to be used during the period of construction of the highway, and that it was not necessary for the permanent use of the highway. Accordingly, when DOT ceased to use .the staging area for highway construction purposes, its rights ceased. The interest was a defeasible fee in that title reverted to the former owner at the end of the construction project, or to the heirs and assigns.
Free access — add to your briefcase to read the full text and ask questions with AI
KALISH, Senior Judge.
The Pennsylvania Department of Transportation (DOT) filed a declaration of taking to acquire a fee simple estate in fifty percent of the property of the Estate of Julia F. Rochez (condemnee), for the construction of a limited access highway. The condemnee filed a number of preliminary objections, including, inter alia, that the taking was excessive. In an order dated August 6, 1985, the trial court held that section 3 of the Act of December 7, 1979, P.L. 478, (Act of 1979-100), 71 P.S. § 513(e), violated Article III, Section 3 of the Pennsylvania Constitution because the title of the [62] Act failed to give notice that its amendment to The Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 513(e)(1), changed the law concerning condemnation for highway rights-of-way to permit such condemnation in fee simple. The condemnee then filed a motion for an amended order of court on the basis that in its order of August 6, 1985, the trial court failed to provide for the revesting of title to the condemned area.
Whereupon, the trial court vacated its prior order and in an order dated August 30, 1985, again held that Act 1979-100 was deficient and void, and ordered the property revested in the condemnee pursuant to section 406 of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-406.1 DOT appealed this order directly to the Pennsylvania Supreme Court.
Meanwhile, in a further clarification of its August 30, 1985 order, the trial court, on September 27, 1985, stated that its order was intended to be “dispositive of the case and did not require the court to address and dispose of the remaining preliminary objections which were therefore not ruled upon.”
DOT then requested the Pennsylvania Supreme Court in addressing its appeal to vacate the September 27, 1985 order of the trial court on the ground that the trial court had no power to make an amendment while the appeal was pending in the Supreme Court. The Supreme Court disposed of the entire matter, ruling that Act 1979-100 was constitutional and remanded the case to the trial court to consider and decide all the remaining issues, including the question of the remaining preliminary objections. In Re: Department of Transportation, 511 Pa. 620, 515 A.2d 899 (1986).
Pursuant to the Supreme Court’s mandate on remand, the trial court proceeded to consider and dispose of the remain[63] ing issues by taking testimony. The evidence indicated that while DOT needed only twenty feet into the condemnee’s building for its roadway, it nevertheless condemned the entire building so that the area could be used as a staging area for the contractors and by so doing, would lessen the cost of construction.
The condemnee contends that it was not necessary to take its entire building, and that if twenty feet of the building was removed and a new wall erected, the building as “cured” would still be functionable. The condemnee contends that to that extent, DOT abused its discretion and the taking was excessive and void.
The trial court held that only twenty feet was necessary for public use, i.e., the construction of the highway, and therefore, the condemnation was excessive. It cited Winger v. Aires, 371 Pa. 242, 89 A.2d 521 (1952), and Pittsburgh School District Condemnation, 430 Pa. 566, 244 A.2d 42 (1968), for the proposition that excessive condemnation is invalid. On preliminary objections, the effect of such a holding would be to revest title in the excessive portion to the condemnee. Section 406 of the Eminent Domain Code, 26 P.S. § 1-406.
DOT contends that on remand the trial court cannot reconsider its preliminary objections. In addition, DOT contends that the taking of more than twenty feet of the building was not an abuse of discretion and therefore not excessive, and that it owns the land in fee simple.
Our scope of review in an appeal from a trial court in an eminent domain case, is limited to determining whether the court abused its discretion or committed an error of law. Pidstawski v. South Whitehall Township, 33 Pa. Commonwealth Ct. 162, 380 A.2d 1322 (1977).
In Faranda Appeal, 420 Pa. 295, 216 A.2d 769 (1966), and Valley Forge Golf Club v. Upper Merion Township, 422 Pa. 227, 221 A.2d 292 (1966), our Supreme Court held that preliminary objections are the sole and exclusive remedy available to a condemnee to challenge a condemna[64] tion. A condemnation proceeding encompasses two distinct proceedings. One goes to whether there has been a taking, the other to damages. Thus, in the former proceeding, all preliminary objections must be heard promptly and at one time. However, here the trial court’s decision that Act 1979-100 was constitutionally deficient put DOT out of court. It was a final order and it was appealable. It was the Supreme Court that ordered the trial court, on remand, to hear the remaining preliminary objections and to determine the issues.
Some of the early cases refer to the interest that the condemnor took as an “easement,” while the later cases call it a “base” or “conditional” fee. However, as the court indicated in Brookbank v. Benedum-Trees Oil Co., 389 Pa. 151, 131 A.2d 103 (1957), the important thing is not the name given to the estate or the interest acquired, but rather what are the rights acquired by reason of the taking. Thus, in Brookbank, where as a final step in the acquisition of a strip of land by eminent domain, the owner executed a deed which provided that the owner granted, bargained, sold, released and conveyed unto the railroad a strip of land, the court held that it was clear, even from the instrument itself, that the intent was to convey not an absolute fee, but rather a defeasible fee and that when the strip of land ceased to be used for the purpose acquired, the rights of the railroad ceased and the property reverted to the former owner.
In the instant case, it was known by the condemnor that the land to be acquired for the staging area was of a temporary nature to be used during the period of construction of the highway, and that it was not necessary for the permanent use of the highway. Accordingly, when DOT ceased to use .the staging area for highway construction purposes, its rights ceased. The interest was a defeasible fee in that title reverted to the former owner at the end of the construction project, or to the heirs and assigns.
[65] Furthermore, once it is shown that the condemnation is for a public purpose and that the condemnor has the power to condemn, the other area of judicial review of the action of the condemnor involves administrative discretion. It has been held that the decisions of the condemnor concerning the amount or location of the land or the type of estate condemned are not subject to judicial review unless such decision is fraudulent, arbitrary, or capricious. There is a presumption that the acts of the condemnor are for the public good and the court will not substitute its discretion for that of the administrative body, absent such capriciousness or arbitrariness. St. Peter’s Roman Catholic Parish v. Urban Redevelopment Authority, 394 Pa. 194, 146 A.2d 724 (1958), cert. denied and appeal dismissed, 359 U.S. 435, 79 S.Ct. 940, 3 L.Ed.2d 931 (1959).
Section 2003(e) of The Administrative Code, 71 P.S. § 513(e), sets out the scope of the authority and power of DOT in acquiring land by condemnation, namely, “[t]o acquire ... land in fee simple or such lesser estate or interest as it shall determine, in the name of the Commonwealth, for all transportation purposes, including marking, rebuilding, relocating, widening, reconstructing, repairing, and maintaining State designated highways and other transportation facilities including garages, storage sheds or other buildings, as shall be required for transportation purposes.” (Emphasis added.)
The record is clear that the condemned area involved in this matter was to be used as a storage area or construction facility for the contractors and builders to store their equipment during construction and that once this use has ended, there is no need for this property. In effect, the only interest that DOT needed was in the nature of a temporary easement. Knowing this, it was a clear abuse of discretion by DOT in taking a fee simple estate rather than such interest it shall determine was necessary for the temporary storage of the contractor’s equipment. The taking of a fee simple was excessive. In any event, the land reverted to ownership by the condemnee.
[66] Had the land been vacant when condemned, there is no question that the condemnor would be entitled to use the earth and to grade it for its purpose without making a separate payment therefor. Hall v. Delaware, Lackawanna & Western Railroad Co., 270 Pa. 468, 113 A. 669 (1921). However, the building was razed, and DOT, by its conduct, interfered with the beneficial use of the condemnee’s property. Therefore, just compensation requires that the condemnee be compensated.
Accordingly, this court agrees that there was a reverter of title to the condemnee. The order of the trial court is affirmed, and this matter is remanded for a determination of damages consistent with this opinion.
ORDER
NOW, May 17, 1989, the order of the Court of Common Pleas of Allegheny County, No. GD-84-6940, is affirmed, and this matter is remanded to the Court of Common Pleas of Allegheny County for a determination of damages consistent with this opinion.
Jurisdiction relinquished.
DOYLE, J., concurs and dissents.