North Penn Water Authority v. A Certain Parcel of Land Identified by Last Known Owner and Tax Parcel No. as Michael H. Malin and Dorothy Seimel Malin (Block No. 052, Unit 043, Tax Parcel No.: 35-00-06040-00-9

Decision Date22 November 1994
Docket NumberNo. 052,U,052
Citation650 A.2d 1197
PartiesPage 1197 650 A.2d 1197 168 Pa.Cmwlth. 477 NORTH PENN WATER AUTHORITY v. A CERTAIN PARCEL OF LAND IDENTIFIED BY LAST KNOWN OWNER AND TAX PARCEL NUMBER AS MICHAEL H. MALIN AND DOROTHY SEIMEL MALIN (BLOCK NO. 052, UNIT 043, TAX PARCEL NO.: 35-00-06040-00-9. Appeal of Michael H. MALIN and Dorothy Seimel Malin, Appellants. Commonwealth Court of Pennsylvania
CourtPennsylvania Commonwealth Court

Michael H. Malin, for appellants.

Carl N. Weiner, for appellee.

Before COLINS, President Judge, and PELLEGRINI and NEWMAN, JJ.

PELLEGRINI, Judge.

Michael H. Malin and Dorothy Seimel Malin appeal the order of the Court of Common Pleas of Montgomery County (trial court) dismissing the Malins' preliminary objections to North Penn Water Authority's (North Penn) declaration of taking and granting North Penn a writ of possession.

In November of 1991, North Penn filed a declaration of taking for property owned by the Malins for the purpose of acquiring a permanent easement and right-of-way and a temporary construction easement for the construction, installation, maintenance and use of public water lines pursuant to the Municipal Authorities Act of 1945. 1

The Malins filed preliminary objections to the declaration of taking raising North Penn's failure to file a notice to defend under Pa. R.C.P. No. 1018.1, 2 bad faith by North Penn in filing this declaration of taking without having paid just compensation on a prior declaration of taking that had been relinquished, 3 3 that the condemnation was not in the public interest and was therefore violative of the Pennsylvania and United States Constitutions, the bond presented was inadequate and valueless, and the easement sought was excessive. North Penn filed a response to the preliminary objections denying that Pa. R.C.P. No. 1018.1 was applicable, arguing that the prior taking was irrelevant to this proceeding, that the taking was in the public interest, and that the bond was sufficient and properly posted under the Eminent Domain Code. 4

The Malins then filed a motion to strike North Penn's response to their preliminary objections protesting to the language used by North Penn in one paragraph of its response and North Penn's argument that Pa. R.C.P. No. 1018.1 is inapplicable. Briefs were filed on the issue of whether a notice to defend was required with the notice of declaration of taking. On May 19, 1992, the trial court denied the motion to strike and dismissed that preliminary objection, finding that the declaration of taking was proper under Section 405 of the Eminent Domain Code, 26 P.S. § 1-405, and that Pa.R.C.P. 1018.1 does not apply. 5

North Penn filed a praecipe for argument on the remaining preliminary objections. Because there was no response from the Malins, North Penn then filed a motion to dismiss the preliminary objections due to the Malins' failure to file a brief in support of their preliminary objections, in violation of Montgomery County Local Rule of Civil Procedure 302(f). 6

Several months later, North Penn filed a petition for writ of possession stating that it made an offer of $2,000 as just compensation but the Malins did not respond to the offer and withheld possession. The Malins filed preliminary objections to the petition for writ of possession arguing that preliminary objections remained, the offer was grossly inadequate because they have an estimate of damages at over $24,000, and the offer was made in bad faith because there are pending proceedings in the 1981 taking. North Penn answered the preliminary objections to the writ of possession arguing that the previous preliminary objections should be dismissed for the Malins' failure to file a brief, and that under Section 407(a) of the Eminent Domain Code, there are no "pending preliminary objections warranting delay" to prevent the writ of possession. 7

After briefs were filed by both parties, the trial court dismissed the Malins' preliminary objections to the declaration of taking for their failure to file a brief in compliance with local rules. In its September 2, 1993 order, the trial court also granted the petition for writ of possession because there were no pending preliminary objections warranting delay and because there was no evidence that the offer of estimated just compensation was made either fraudulently or in palpable bad faith. The Malins then filed this appeal to both orders dismissing their preliminary objections. 8

The Malins contend that the Rules of Civil Procedure do apply and the original filing did require a notice to defend. They also contend that the trial court should not have dismissed their preliminary objections to the declaration of taking under a local rule. They argue that the trial court was required to hold an evidentiary hearing before dismissing the preliminary objections and granting the writ of possession. They contend that in their answer to North Penn's petition for writ of possession, they asserted that the estimated just compensation was so inadequate as to be in palpable bad faith. Finally, they assert that the proceedings denied them due process.

Before addressing the merits of the Malins' appeal, North Penn argues that the trial court's May 19, 1992 order dismissing the one preliminary objection to the lack of a notice to defend is a final order and the Malins' appeal to that order was not timely filed. Although the dismissal of preliminary objections to a declaration of taking are generally final orders by the trial court, the May 1992 order was not a final order because it specifically addressed only one procedural objection and the decision on that one issue did not put the Malins out of court. Appeal of Hanni, 420 Pa. 289, 292, 216 A.2d 774, 776 (1966). In Hanni, the Supreme Court stated: "the Court of Common Pleas is empowered to make preliminary Orders or final Orders relating to preliminary objections, and either party may appeal from a final Order.... When the Order of a lower Court so restricts a party's further action as virtually to put (him or) it out of Court upon the question or cause which is being litigated, the Order is final and therefore appealable." (Emphasis omitted). See Estate of Rochez, 126 Pa.Commonwealth Ct. 59, 64, 558 A.2d 605, 608 (1989), petitions for allowance of appeal denied, 525 Pa. 605, 606, 575 A.2d 570, 571 (1990). 9 Because the trial court's May 19, 1992 order was interlocutory, no appeal was required to be filed from that order until the Malins were out of court entirely on their preliminary objections to the declaration of taking.

As to the substance of the Malins' appeal, they first contend that the trial court erred in dismissing their preliminary objection to North Penn's failure to attach a notice to defend to the declaration of taking under Pa. R.C.P. No. 1018.1. As held by the trial court, however, the Rules of Civil Procedure do not apply to eminent domain proceedings. Appeal of McCoy, 153 Pa.Commonwealth Ct. 504, 621 A.2d 1163 (1993); Appeal of Edgewood Building Company, Inc., 43 Pa.Commonwealth Ct. 91, 402 A.2d 276 (1979). The Malins argue that Rule 1018.1 was intended to apply to all complaints. See Explanatory Comment to Pa. R.C.P. No. 1018.1. However, they have pointed to nothing within the Rules of Civil Procedure or the Eminent Domain Code that defines a declaration of taking under the Code as a complaint. To the contrary, the Eminent Domain Code is the exclusive procedure for giving notice to a condemnee of the declaration of taking. Appeal of Edgewood; see Section 303 of the Eminent Domain Code, 26 P.S. § 1-303. Although a notice to defend would provide additional information, Section 405 of the Eminent Domain Code, 26 P.S. § 1-405(c)(12), does require that the notice to condemnees inform them that if they wish to challenge the condemnation, they must file preliminary objections within 30 days after being served with the notice of condemnation. 10

The Malins also contend that the trial court erred in dismissing their remaining preliminary objections to the declaration of taking based on a local rule. They argue that the exclusive procedures are those provided under Section 406 of the Eminent Domain Code. North Penn counters that local rules do apply because it is necessary to have a framework in order to have cases promptly heard and resolved. It argues that the Malins failed to comply with the rule by not filing their brief until several months after it was due and, therefore, the trial court had discretion to dismiss the preliminary objections.

Preliminary objections in the context of eminent domain actions serve a very different purpose than preliminary objections filed in other civil actions under the Rules of Civil Procedure. Department of Transportation v. Florek, 71 Pa.Commonwealth Ct. 615, 455 A.2d 1263 (1983). In eminent domain cases, preliminary objections under Section 406 serve a broader purpose and are intended as a procedure to resolve expeditiously the factual and legal challenges to the declaration of taking before the parties move to the second distinct proceeding for determining damages. Jacobs v. Nether Providence Township, 6 Pa.Commonwealth Ct. 594, 297 A.2d 550 (1972). See Appeal of Hanni, 420 Pa. at 293-295, 216 A.2d at 777 (concurring opinion) (Section 406 provides an immediate device to determine the basic power or right to condemn). Section 406(e) of the Eminent Domain Code, 26 P.S. § 1-406(e), provides that the trial court should promptly determine all preliminary objections and make the appropriate orders and that "[i]f an issue of fact is raised, the court shall take evidence by deposition or otherwise".

This court has previously found that preliminary objections may not be dismissed under a local rule where factual issues have not been decided. In Werts v. Luzerne Borough Authority, 15 Pa.Commonwealth Ct. 631, 329 A.2d 335 (1974), the trial court dismissed condemnees' preliminary objections for failure to file a brief under a local...

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