In re Condemnation of Land for the South East Central Business District Redevelopment Area 1

946 A.2d 1154, 2008 Pa. Commw. LEXIS 176

• Court: Commonwealth Court of Pennsylvania
• Decided: April 22, 2008
• Status: Published

Opinions

OPINION BY

Judge FRIEDMAN.

Earnestine 0. Brown (Brown) appeals from the December 13, 2006, order of the Court of Common Pleas of Delaware County (trial court), which overruled Brown’s preliminary objections to the Declaration of Taking (Declaration) filed by the Redevelopment Authority (Authority) of the City of Chester (City) under the former Eminent Domain Code (Code).¹ We affirm.

Brown owns the property located at 405 Madison Street in the City (the Property). The Property is within the South East Central Business Redevelopment Area # 1 (Redevelopment Area), which the City Planning Commission certified as blighted on April 14, 2004.

On May 12, 2004, the Authority approved an Agreement of Sale and Redevelopment Agreement (Agreement) with Vahan Gureghian for the purchase and redevelopment of the Property for charter school purposes, contingent upon approval by City Council.² On August 11, 2004, the Authority approved a Redevelopment Plan Proposal (Plan) providing for educational uses and related facilities in the Redevelopment Area. On February 9, 2005, City Council approved the Agreement and the Plan. On July 6, 2005, the Authority and Gureghian executed the Agreement, and, on July 14, 2005, the Authority filed its Declaration. (Trial ct. op. at 1, 3; R.R. at 18a-19a, 57a, 66a.)

Brown filed preliminary objections to the Declaration with the trial court, asserting that: (1) the taking was “in favor of a private developer,” contrary to Alabama law, although Alabama law conflicts with federal law;³ (2) the current state of eminent domain law is so unsettled that Brown’s rights and responsibilities are “uncertain and unprotected by law”;⁴ and (3) the acquisition of the Property for educational buildings will not be beneficial to the public because the existing educational buildings “have been constructed with such inferior materials and workmanship that the ... life span of [the] institution ... will [not exceed] five (5) years.”⁵ (R.R. at 24a.) After a hearing on the matter, the trial court overruled the preliminary objections. Brown now appeals to this court.⁶

I. Evidentiary Rulings on Contracts

Brown first argues that the trial court abused its discretion by refusing to allow Brown to examine witnesses and to present relevant evidence regarding the Agreement and regarding a contract between Brown and Gureghian. The Authority contends that Brown has waived this issue because, in her brief, Brown does not identify any specific evidentiary rulings of the trial court or provide any citation to the record. We agree with the Authority.

Each part of the argument in a brief must contain the particular point being treated, followed by such discussion and citation of authorities as are deemed pertinent. Pa. R.A.P. 2119(a). Arguments not properly developed in a brief will be deemed waived. Rapid Pallet v. Unemployment Compensation Board of Review, 707 A.2d 636 (Pa.Cmwlth.1998). Moreover, the statement of the case and/or argument portion of a brief must contain a “specific reference to the places in the record” where the ruling, or exception thereto, appears in order to show that the question before the court was timely and properly raised below so as to preserve the question on appeal. Pa. R.A.P. 2117(c); Pa. R.A.P. 2119(e).

Here, Brown merely lists her witnesses and states that the trial court ruled irrelevant their testimony about the Agreement and a contract between Brown and Gureg-hian. Brown does not discuss the details or circumstances of her contract with Gu-reghian; she does not indicate what each witness’s testimony would have been regarding the Agreement and the other contract; and she does not present an argument as to why testimony about the Agreement and the other contract would have been relevant to the issues she raised in her preliminary objections. Moreover, to show the place of each trial court ruling, or exception thereto, Brown simply cites to “pages 6-124” of the hearing transcript. (Brown’s brief at 12.) Such a citation does not constitute a “specific reference” to the places in the record where the rulings or exceptions appear.⁷

Absent proffered testimony to review or properly developed arguments to consider, we are unable to perform appellate review of the trial court’s rulings. Thus, Brown’s first argument is deemed waived.

II. Evidentiary Rulings on Delegation

Brown next argues that the trial court abused its discretion in refusing to allow Brown to present relevant evidence to prove that the Authority improperly delegated its eminent domain powers to Gureghian through the Agreement. However, in her brief, Brown does not indicate what relevant evidence she would have presented as proof of improper delegation, and she does not identify any specific ruling by the trial court in this regard. Absent some knowledge of the excluded evidence and an argument to consider, we are unable to perform appellate review of the trial court’s rulings. Thus, Brown’s second argument is deemed waived.⁸

III. Evidentiary Rulings on Private Benefit

Finally, Brown argues that the trial court abused its discretion in refusing to allow Brown to present relevant evidence showing that the Authority took the Property for the private benefit of Gureghian. However, in her brief, Brown does not indicate what relevant evidence she would have presented, and she does not identify any specific ruling by the trial court in this regard. Absent some knowledge of the excluded evidence and an argument to consider, we are unable to perform appellate review of the trial court’s rulings. Thus, Brown’s final argument is deemed waived.⁹

Accordingly, we affirm.

ORDER

AND NOW, this 22nd day of April, 2008, the order of the Court of Common Pleas of Delaware County, dated December 13, 2006, is hereby affirmed.

1 . Act of June 22, 1964, Special Sess., P.L. 84, as amended, formerly 26 P.S. §§ 1 — 101—1— 903, repealed by section 5(2) of the Act of May 4, 2006, P.L. 112. Although repealed, the Code governs this case because, with certain exceptions not applicable here, the new statute applies only to condemnations occurring on or after its September 1, 2006, effective date. See In re Condemnation by County of Berks, 914 A.2d 962 (Pa.Cmwlth.2007).

2 . (Authority’s Resolution of 8/11/04, ¶ 4(b), R.R. at 19a; Agreement, R.R. at 57a-66a.)

3 . Brown suggests that Alabama law does not permit condemned property to be conveyed to a private developer. Even assuming this to be true, Alabama law has no relevance here.

4 . To the extent Brown argues that her property rights are unprotected by law, Brown appears to concede that the taking in this case was proper.

5 . Brown also raised issues relating to the amount of just compensation and liability for property taxes. (R.R. at 24a-25a.) However, such issues are not properly raised in preliminary objections. See section 406(a) of the Code, 26 P.S. § l-406(a) (stating that preliminary objections are limited to challenges relating to: (1) the power or right to condemn the property; (2) the sufficiency of the security; (3) the procedures followed by the con-demnor; and (4) the declaration of taking).

6 . Our scope of review is limited to determining whether the trial court abused its discretion or committed an error of law. In re Redevelopment Authority of the City of Philadelphia (1839 N. Eighth St.), 595 Pa. 241, 938 A.2d 341 (2007).

7 . We note that Brown does quote the trial court’s statement at page 44 of the notes of testimony: "I haven’t heard a single relevant fact from this ... witness, yet, in an hour.” (R.R. at 167a.) However, Brown does not explain why the trial court’s statement was incorrect.

8 . Instead of arguing how the trial court abused its discretion by excluding evidence showing improper delegation, Brown argues that the Authority improperly delegated its eminent domain powers through its Agreement with Gureghian. The latter would have been a proper issue for Brown to raise in her preliminary objections. See 26 P.S. § 1-406(a) (allowing preliminary objections challenging the procedures followed by the con-demnor). However, Brown did not raise such an issue, and the failure to raise an issue permitted by preliminary objections constitutes a waiver of that issue. Id.

We also note that, in making her argument, Brown challenges the determination of blight. However, this issue is not set forth in, or suggested by, the statement of questions involved; thus, the matter is waived. See Pa. R.A.P. 2116(a) (stating that, ordinarily, no point will be considered which is not set forth in the statement of questions involved or suggested thereby).

9 . We note that Brown did not raise this issue in her preliminary objections. For that reason, too, the issue is waived. 26 P.S. § 1-406(a).