OPINION BY
Senior Judge KELLEY.
Carol M. Nicoletti (Condemnee) appeals from the order of the Court of Common Pleas of Allegheny County (trial court) overruling her preliminary objections to the Declaration of Taking filed by the Allegheny County Airport Authority (Authority) pursuant to the Pennsylvania Eminent Domain Code
and the Municipality Authorities Act of 1945.
We quash the appeal, vacate the trial court’s order, and dismiss the Declaration of Taking.
Condemnee owns the mineral rights in fee for a number of parcels of property located in Findlay Township, Allegheny County. Allegheny County owns the surface rights to these parcels in fee, through prior condemnation, as they are in close proximity to Pittsburgh International Airport.
On September 16, 1999, Allegheny County entered into the Airport Operation, Management and Transfer Agreement and Lease between Allegheny County, Pennsylvania and the Allegheny County Airport Authority (Lease Agreement) with the Authority. The Lease Agreement states, in pertinent part, that “[t]he County, at Closing, demises and lets unto the Authority and the Authority leases from the County, the Airports, including all lands, buildings, fixtures, improvements, structures, aviation easements, rights of access, and appurtenances pertaining thereto ... for the Demised Term [of 25 years] ... ”, and that the Authority has two options to extend the term of the Lease Agreement by two additional 25-year terms. Reproduced Record (R.R.) at 79a.
On November 9, 2001, the Authority’s Board of Directors adopted a Resolution authorizing the condemnation of the outstanding mineral rights owned by Con-demnee with respect to the subject par
cels. On May 10, 2002, the Authority filed a Declaration of Taking to condemn Con-demnee’s property which states, in pertinent part:
3. This Declaration of Taking was authorized by the following: a Resolution of the Board of Directors of the [Authority] adopted November 9, 2001
4. The purpose of this condemnation is to establish and maintain air navigation access and terminal facilities authorized by the Municipality Authorities Act of 1945 ...
5. A statement of the property and mineral interests being condemned and hereby taken (which are located in Moon and Findlay Townships, Allegheny County, Pennsylvania), is more particularly set forth in Exhibit “A” hereto attached. Also a plan of the property being taken and condemned is hereto attached and marked Exhibit “B”. The plan of the property being taken and condemned has been designated the “Mineral Estate Plan of Acquisition— Phase VI” and has also been filed with the Planning Department in the Office of the Recorder of Deeds of Allegheny County.
7. The purpose of this condemnation is to assure unto the [Authority] the absolute and unqualified fee simple title, free and clear of all liens and encumbrances, including all mineral estates, leasehold estates, easements and other interests of all record owners thereof, or any party having an interest therein (except as set forth in Exhibit “A”), the names of which owners and parties in interest and them respective interests condemned, if any, are more particularly set forth and tabulated in Exhibit “C” hereto attached.
R.R. at 1a-2a.
On June 13, 2002, Condemnee filed preliminary objections to the Authority’s Declaration of Taking, in which she alleged: (1) the stated purpose of the condemnation, i.e. the vesting of fee simple absolute title to the property in the Authority, cannot be achieved because Allegheny County owns the surface estate to the property in fee and the Authority merely has a posses-
sory interest under the terms of the Lease Agreement; (2) the condemnation is not for a public purpose as the Authority already has a sufficient interest in the property to maintain the airport and terminal facilities and is condemning the property to lease it to other private parties; and (3) the Authority’s use of its condemnation powers was fraudulent, arbitrary, capricious and done in bad faith.
Argument on the preliminary objections was conducted before the trial court. On January 9, 2003, the trial court entered an order and opinion disposing of Condemnee’s preliminary objections. Specifically, the court determined: (1) the Lease Agreement was the equivalent to the sale of the County’s interest in the property to the Authority for the term of the lease; (2) the Authority’s stated purpose to free the property from all encumbrances is a public purpose; and (3) the Authority’s condemnation of the outstanding interests in the land underlying the airport complex is not fraudulent, arbitrary, capricious or done in bad faith. As a result, the trial court issued an order overruling Condemnee’s preliminary objections to the Authority’s Declaration of Taking. Condemnee then filed the instant appeal in this Court.
In this appeal, Condemnee claims
: (1) the trial court erred in failing to dismiss the instant Declaration of Taking in that the County was an indispensable party to the proceedings as the owner in fee of the surface estate of the condemned property; (2) the trial court erred in determining that the Lease Agreement between Allegheny County and the Authority conveyed the County’s fee interest in the surface estate of Condemnee’s land; (3) the trial court erred in determining that the Authority’s condemnation was for a public purpose; and (4) the trial court erred in determining that the Authority’s condemnation was not fraudulent, arbitrary, capricious and done in bad faith.
As noted above, Condemnee first claims that the trial court erred in failing to dismiss the instant Declaration of Taking in that the County was an indispensable party to the proceedings as the owner in fee of the surface estate of the condemned property.
We agree.
Both the trial court below, and the Authority in this appeal, assert that the instant Lease Agreement conveyed a property interest in the airport land and structures to the Authority. It is true that leases do convey a proprietary interest in the property conveyed thereunder for the demised term.
See, e.g., Stonehedge Square Limited Partnership v. Movie Merchants, Inc., 552
Pa. 412, 715 A.2d 1082 (1998);
Adams Sanitation Co., Inc. v. Department of Environmental Protection,
552 Pa. 304, 715 A.2d 390 (1998);
Commonwealth v. Monumental Properties,
459 Pa. 450, 329 A.2d 812 (1974).
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OPINION BY
Senior Judge KELLEY.
Carol M. Nicoletti (Condemnee) appeals from the order of the Court of Common Pleas of Allegheny County (trial court) overruling her preliminary objections to the Declaration of Taking filed by the Allegheny County Airport Authority (Authority) pursuant to the Pennsylvania Eminent Domain Code
and the Municipality Authorities Act of 1945.
We quash the appeal, vacate the trial court’s order, and dismiss the Declaration of Taking.
Condemnee owns the mineral rights in fee for a number of parcels of property located in Findlay Township, Allegheny County. Allegheny County owns the surface rights to these parcels in fee, through prior condemnation, as they are in close proximity to Pittsburgh International Airport.
On September 16, 1999, Allegheny County entered into the Airport Operation, Management and Transfer Agreement and Lease between Allegheny County, Pennsylvania and the Allegheny County Airport Authority (Lease Agreement) with the Authority. The Lease Agreement states, in pertinent part, that “[t]he County, at Closing, demises and lets unto the Authority and the Authority leases from the County, the Airports, including all lands, buildings, fixtures, improvements, structures, aviation easements, rights of access, and appurtenances pertaining thereto ... for the Demised Term [of 25 years] ... ”, and that the Authority has two options to extend the term of the Lease Agreement by two additional 25-year terms. Reproduced Record (R.R.) at 79a.
On November 9, 2001, the Authority’s Board of Directors adopted a Resolution authorizing the condemnation of the outstanding mineral rights owned by Con-demnee with respect to the subject par
cels. On May 10, 2002, the Authority filed a Declaration of Taking to condemn Con-demnee’s property which states, in pertinent part:
3. This Declaration of Taking was authorized by the following: a Resolution of the Board of Directors of the [Authority] adopted November 9, 2001
4. The purpose of this condemnation is to establish and maintain air navigation access and terminal facilities authorized by the Municipality Authorities Act of 1945 ...
5. A statement of the property and mineral interests being condemned and hereby taken (which are located in Moon and Findlay Townships, Allegheny County, Pennsylvania), is more particularly set forth in Exhibit “A” hereto attached. Also a plan of the property being taken and condemned is hereto attached and marked Exhibit “B”. The plan of the property being taken and condemned has been designated the “Mineral Estate Plan of Acquisition— Phase VI” and has also been filed with the Planning Department in the Office of the Recorder of Deeds of Allegheny County.
7. The purpose of this condemnation is to assure unto the [Authority] the absolute and unqualified fee simple title, free and clear of all liens and encumbrances, including all mineral estates, leasehold estates, easements and other interests of all record owners thereof, or any party having an interest therein (except as set forth in Exhibit “A”), the names of which owners and parties in interest and them respective interests condemned, if any, are more particularly set forth and tabulated in Exhibit “C” hereto attached.
R.R. at 1a-2a.
On June 13, 2002, Condemnee filed preliminary objections to the Authority’s Declaration of Taking, in which she alleged: (1) the stated purpose of the condemnation, i.e. the vesting of fee simple absolute title to the property in the Authority, cannot be achieved because Allegheny County owns the surface estate to the property in fee and the Authority merely has a posses-
sory interest under the terms of the Lease Agreement; (2) the condemnation is not for a public purpose as the Authority already has a sufficient interest in the property to maintain the airport and terminal facilities and is condemning the property to lease it to other private parties; and (3) the Authority’s use of its condemnation powers was fraudulent, arbitrary, capricious and done in bad faith.
Argument on the preliminary objections was conducted before the trial court. On January 9, 2003, the trial court entered an order and opinion disposing of Condemnee’s preliminary objections. Specifically, the court determined: (1) the Lease Agreement was the equivalent to the sale of the County’s interest in the property to the Authority for the term of the lease; (2) the Authority’s stated purpose to free the property from all encumbrances is a public purpose; and (3) the Authority’s condemnation of the outstanding interests in the land underlying the airport complex is not fraudulent, arbitrary, capricious or done in bad faith. As a result, the trial court issued an order overruling Condemnee’s preliminary objections to the Authority’s Declaration of Taking. Condemnee then filed the instant appeal in this Court.
In this appeal, Condemnee claims
: (1) the trial court erred in failing to dismiss the instant Declaration of Taking in that the County was an indispensable party to the proceedings as the owner in fee of the surface estate of the condemned property; (2) the trial court erred in determining that the Lease Agreement between Allegheny County and the Authority conveyed the County’s fee interest in the surface estate of Condemnee’s land; (3) the trial court erred in determining that the Authority’s condemnation was for a public purpose; and (4) the trial court erred in determining that the Authority’s condemnation was not fraudulent, arbitrary, capricious and done in bad faith.
As noted above, Condemnee first claims that the trial court erred in failing to dismiss the instant Declaration of Taking in that the County was an indispensable party to the proceedings as the owner in fee of the surface estate of the condemned property.
We agree.
Both the trial court below, and the Authority in this appeal, assert that the instant Lease Agreement conveyed a property interest in the airport land and structures to the Authority. It is true that leases do convey a proprietary interest in the property conveyed thereunder for the demised term.
See, e.g., Stonehedge Square Limited Partnership v. Movie Merchants, Inc., 552
Pa. 412, 715 A.2d 1082 (1998);
Adams Sanitation Co., Inc. v. Department of Environmental Protection,
552 Pa. 304, 715 A.2d 390 (1998);
Commonwealth v. Monumental Properties,
459 Pa. 450, 329 A.2d 812 (1974).
However, it is well settled that where a lease conveys a lesser estate than that possessed by the lessor, it does not convey the lessor’s fee title in the property. Indeed, as the Pennsylvania Supreme Court has noted:
[B]lackstone says, book II, chap. 9, § 144; ‘Because no livery of seisin is necessary to a lease for years, such lessee is not said to be seised, or to have true legal seisin of the lands. Nor indeed does the bare lease vest any estate in the lessee; but only gives him a right of entry on the tenement, which right is called his interest in the term, or inter-esse termini: but when he has actually so entered, and thereby accepted the grant, the estate is then, and not before, vested in him, and he is possessed, not properly of the land, but of the term of years; the possession or seisin of the land remaining still in him who hath the freehold.’
Sheaffer v. Baeringer,
346 Pa. 32, 34, 29 A.2d 697, 698 (1943).
See also In re Wilson’s Estate,
349 Pa. 646, 649, 37 A.2d 709, 710 (1944) (“[A] tenant is ‘one who oecu-pies land or the premises of another in subordination to the other’s title, and with his assent, express or implied.’ ”) (citation omitted);
Sanderson v. City of Scranton,
105 Pa. 469, 472-473 (1888) (“[I]t is one of the essential properties of a lease that its duration shall be for a determinate period, shorter than the duration of the estate of the lessor, hence the estate demised is called a ‘term’, and necessarily implies a reversion. If the entire interest of the lessor is conveyed, in the whole or a portion of his land, the conveyance cannot therefore be properly regarded as a demise ... ”).
Under the terms of the instant Lease Agreement, the County expressly and specifically retained a reversionary interest
in all of the airport property that was leased to the Authority thereunder. Under its terms, the Authority is required to yield to the County any and all interest it has in the airport property based on either the Authority’s material default of the terms of the Agreement, the mutual agreement of the parties, or the expiration of the demised term of the Agreement.
See
Sections 16.02, 18.01 and 18.02 of the Lease Agreement.
,
The instant Declaration of Taking filed by the Authority states, in pertinent part, that the purpose of the condemnation was to “[t]o assure unto the [Authority] the absolute and unqualified fee simple title
, free and clear of all hens and encumbrances, including all mineral estates, leasehold estates, easements and other interests of all record owners thereof ...” R.R. at la-2a. In order to obtain title to the airport property in fee simple absolute, the Authority was required to extinguish all adverse interests in the property including that of the County
and that of the Condemnee.
,
In addition, as the
Declaration of Taking must state the purpose of the taking and the title taken pursuant to Section 402 of the Eminent Domain Code, 26 P.S. § 1-402, title to the airport property, in fee simple absolute, purportedly passed to the Authority at the time that the Declaration of Taking was filed by operation of law.
Id.; In re Condemnation of the Stormwater Management Easements; Fetter.
However, as noted above, pursuant to Section 5615(a)(2) of the Municipal Authority’s Act, the Authority cannot obtain title by eminent domain to any “[p]roperty owned or used by ... the Commonwealth or any of its political subdivisions ...” 53 Pa.C.S. § 5615(a)(2). Thus, the Authority does not possess the power to condemn the County’s interest in the airport property absent the County’s express consent.
See, e.g., Urban Redevelopment Authority of Pittsburgh v. Hackaday,
93 Pa.Cmwlth. 378, 501 A.2d 349, 350 (1985) (“[Sjection 12 of the Urban Redevelopment Law, Act of May 24, 1945, P.L. 991,
as amended,
35 P.S. § 1712, the enabling act for Redevelopment Authorities provides, ‘no real property belonging to a city, county or to the Commonwealth may be acquired without its consent.’ There is nothing in the record indicating that the City gave its consent thus validating the taking. The notices sent by the Authority to the City indicated the [prior owners] as owner. This cannot be construed as an implied consent by the City.”).
Moreover, and more importantly, Section 11.02(iii) of the Lease Agreement provides, in pertinent part, that “[t]he County agrees to cooperate with the Authority in any litigation or proceeding undertaken to clear title to any real property on which any of the Airport Assets are situate.” Thus, the express terms of the Lease Agreement specifically contemplate the County’s active participation in any proceedings to clear title to the realty underlying the airport. There is absolutely nothing in the certified record of this case demonstrating that the County either explicitly or implicitly conveyed its remaining interest in the airport property to the Authority, or that it actively participated in these proceedings to clear the title to the airport property and to vest title in itself, or in the Authority, in fee simple absolute.
In
Biernacki v. Redevelopment Authority of the City of Wilkes-Barre,
32 Pa.Cmwlth. 537, 379 A.2d 1366 (1977), property owned by John and Alice Biernadd at 98 Franklin Street in the City of Wilkes-Barre was condemned by the City’s Redevelopment Authority as part of an urban renewal project, and the Biernacki’s received compensation for the taking. After it was determined that the building on the property at 98 Franklin Street did not need to be razed as initially planned, the property was conveyed by the Redevelopment Authority to an adjoining landowner, Hart Realty Co. When the Biernaeki’s learned that the building on the property would not be razed, they filed a petition for a rule to show cause why the property should not be reconveyed to them pursuant to Section 410(a) of the Eminent Domain Code.
The Redevelopment Authori
ty objected to the Biernacki’s petition on the basis that an indispensable party, i.e., the owner Hart Realty Co., was not a party to the proceedings. Nonetheless, the trial court issued an order requiring the Redevelopment Authority to “revoke” the condemnation proceedings against the property and to “revest title” to the property in the Biernacki’s. The Redevelopment Authority then filed an appeal from the trial court’s order in this Court.
In disposing of the appeal, this Court stated the following, in pertinent part:
Although Hart Realty Co., Inc. is the owner in fee of 98 Franklin Street, it is not, and never has been a party to these proceedings. The court below dismissed the Authority’s objection that an indis-pensible party was not joined by simply noting that the Pennsylvania Rules of Civil Procedure do not apply to proceedings under the Eminent Domain Code. While it is true that the Rules of Civil Procedure are not applicable in condemnation cases, the issue of nonjoinder of an indispensible party is not so easily avoided.
No court may grant relief in the absence of an indispensible party. An in-dispensible party is one whose rights are so connected with the claims of the litigants that no relief can be granted without infringing upon those rights. As noted, Hart Realty Co., Inc. is, and has been since November 1975, the owner of 98 South Franklin Street. Clearly, the owner of real estate is an indispensible party to proceedings seeking transfer of the title to the property to another and culminating in an order purportedly vesting title in another. It would be difficult to imagine a darker cloud on one’s title than that created by the court’s order in this case. An indispen-sible party not having been joined, the court below was without jurisdiction to grant any relief in this case ...
Id.
at 1367-1368 (citations omitted). As the trial court was without jurisdiction to grant any relief in the case, this Court issued an order quashing the appeal, vacating the trial court’s order granting the Biernacki’s petition, and dismissing the petition without prejudice to the Biernacki’s right to institute a new action wherein all indispensable parties are made parties to the proceeding.
Id.
at 1368.
Likewise, the County was never a party to the instant “[proceedings seeking transfer of the title to the [airport] property to another and culminating in an order purportedly vesting title in another ...”
Id.
As a result, the trial court was with
out jurisdiction to entertain the instant Declaration of Taking.
Id.
Accordingly, the instant appeal is quashed, the trial court’s order is vacated, and the Declaration of Taking is dismissed without prejudice.
ORDER
AND NOW, this 20th day of January, 2004, the above-captioned appeal is quashed; the order of the Court of Common Pleas of Allegheny County, entered January 9, 2003 at No. GD 2002-9327, is vacated; and the Declaration of Taking filed by the Allegheny County Airport Authority, in the Court of Common Pleas of Allegheny County at No. GD 2002-9327, is dismissed without prejudice to the Allegheny County Airport Authority’s right to institute a new action wherein all indispensable parties are made parties to the proceeding.
Jurisdiction is relinquished.