IN RE CONDEMNATION BY COM. OF PENNSYLVANIA

• Decision Date: 14 August 2002
• Citation: 805 A.2d 59
• Parties: In re CONDEMNATION BY the COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, OF the RIGHT-OF-WAY FOR STATE ROUTE 0079, SECTION 290, A LIMITED ACCESS HIGHWAY IN the TOWNSHIP OF CRANBERRY. Norberry One Condominium Association, et. al., v. Commonwealth of Pennsylvania, Department of Transportation. Appeal of Norberry One Condominium: Association; Martin V. Dorsch; Vincent Cannella, III and Sharon M. Cannella; Joseph S. Scafoglio and Nancy Scafoglio; Linda A. Hogan; Donna Wylie; Guy R. Palermo, II, Pamela Breier, Carl J. Palermo and Alan M. Palermo; Paul A. Eastland; Lee A. Ivory and Suzann Seanof Ivory; Susan L. Slezycki and Edward Slezycki; Olga P. Simmons; Cheryl A. Stanley; Dennis A. Bischoff; Marlene Nooning and John Ungham.
• Court: Pennsylvania Commonwealth Court

805 A.2d 59

In re CONDEMNATION BY the COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, OF the RIGHT-OF-WAY FOR STATE ROUTE 0079, SECTION 290, A LIMITED ACCESS HIGHWAY IN the TOWNSHIP OF CRANBERRY.

Norberry One Condominium Association, et. al., v. Commonwealth of Pennsylvania, Department of Transportation.

Appeal of Norberry One Condominium: Association; Martin V. Dorsch; Vincent Cannella, III and Sharon M. Cannella; Joseph S. Scafoglio and Nancy Scafoglio; Linda A. Hogan; Donna Wylie; Guy R. Palermo, II, Pamela Breier, Carl J. Palermo and Alan M. Palermo; Paul A. Eastland; Lee A. Ivory and Suzann Seanof Ivory; Susan L. Slezycki and Edward Slezycki; Olga P. Simmons; Cheryl A. Stanley; Dennis A. Bischoff; Marlene Nooning and John Ungham.

Commonwealth Court of Pennsylvania.

Argued May 7, 2002.

Decided August 14, 2002.

William P. Bresnahan, Pittsburgh, for appellants.

Jeffrey L. Giltenboth, Pittsburgh, for appellee.

Before: LEADBETTER, Judge, LEAVITT, Judge, and McCLOSKEY, Senior Judge.

OPINION BY Judge LEAVITT.

This is an appeal of the order of the Court of Common Pleas of Butler County (trial court) sustaining the preliminary objections of the Department of Transportation (DOT) to a Petition for Appointment of Viewers¹ filed by the Norberry One Condominium Association (Association), a non-profit corporation, and twelve individual condominium owners (collectively Norberry). Norberry asserts that construction of a highway entrance ramp 60 feet from the Norberry One Condominium Building (Norberry One) effects a de facto condemnation and, therefore, the trial court erred in sustaining DOT's preliminary objections. For the reasons set forth below, we affirm the trial court.

This matter arises out of a Connector Project (Connector Project) undertaken by DOT and by the Pennsylvania Turnpike Commission (Turnpike) to connect the Pennsylvania Turnpike and Interstate Route 79 (I-79) at the Cranberry Interchange of the Pennsylvania Turnpike in Cranberry Township, Butler County. The Turnpike and DOT divided responsibilities for the joint project; DOT agreed to be responsible for the acquisition of property needed to complete the Connector Project. Planning for the Connector Project began in 1989. By 1995, DOT published a report that selected a plan entitled "Alternative 3A Modified" from the number of alternate plans considered for the Connector Project. The 3A Modified Plan called for the total taking of Norberry One.

In January of 1996 the Connector Project was put on hold due to funding problems. In October of 1997, DOT considered the Connector Project ready to proceed, but it was delayed again due to a decision of the Turnpike to alter its toll collection system, necessitating a design change.

In 1998, a consultant retained by DOT for relocating persons displaced by the Connector Project, made initial contact with Cheryl Stanley, a resident and unit owner in Norberry One and the secretary of the Association. At this meeting Ms. Stanley directed the DOT consultant to talk with her and no one else; he provided Ms. Stanley with a number of brochures for the residents of Norberry One and, consistent with her directions, did not contact any other tenants or unit owners.

In 1999, as a result of the design change, the Turnpike adopted an alternative implementation plan known as "Alternate K." The Connector Project was reconfigured so that only a portion of the Norberry One parking lot would be taken, as opposed to the entire property. "Alternate K" required the construction of an access ramp to the connector highway to be built within sixty feet of a corner of the Norberry One building. The sloping ramp was to be elevated by a concrete wall twelve to fourteen feet in height above ground level with a fifty-two inch high "jersey barrier" on top.

On May 3, 2000, DOT filed a Declaration of Taking and served a Notice of Filing of Declaration of Taking upon the Association president, who was also the property manager, but not upon any individual unit owner. The Declaration of Taking identified a part of the Norberry One parking lot and a construction easement as the "taking."

On June 1, 2000, Norberry filed preliminary objections to the Declaration of Taking, requesting the trial court to declare the Declaration of Taking void and of no effect or to declare the taking to be a de facto condemnation of the entire building. Norberry's preliminary objections identified procedural deficiencies in the Declaration of Taking, and it alleged that the project would so deplete the parking lot as to make the units uninhabitable as would the noise, fumes, debris and other effects of the construction. On June 15, 2000, DOT filed preliminary objections to Norberry's preliminary objections to DOT's Declaration of Taking.²

On June 19, 2001, Norberry filed a Petition for the Appointment of Viewers asserting a de facto taking arising from DOT's pre-condemnation activities. On June 29, 2001, DOT filed preliminary objections to Norberry's Petition for Appointment of Viewers.

Upon agreement of the parties and approval of the trial court, the record was developed by depositions and other discovery. After the issues were briefed, the trial court issued its ruling sustaining DOT's preliminary objections to Norberry's preliminary objections to DOT's Declaration of Taking. It also sustained DOT's preliminary objections to Norberry's Petition for Appointment of Viewers. The trial court vacated its prior order appointing a Board of View and dismissed Norberry's Petition for Appointment of Viewers. Norberry appeals the trial court's order to this court.³

On appeal, Norberry raises both procedural and substantive issues, as it did below. It contends that DOT's Declaration of Taking was procedurally deficient because of improper service and failure to include certain information required by statute. Substantively, it contends that the pre-condemnation activities of DOT effected a de facto taking of Norberry One thereby entitling it to just compensation.

I.

Norberry initially challenges the trial court's decision because it did not rule on procedural deficiencies Norberry raised in its preliminary objections. This challenge is compromised by Norberry's failure to place into the record the specific documents needed to prove the alleged deficiencies. An appellate court may only consider evidence developed below that is duly certified in the record. For purposes of appellate review, what is not of record does not exist. Pa. R.A.P. 302(a); City of Pittsburgh Commission on Human Relations v. DeFelice, 782 A.2d 586 (Pa. Cmwlth.2001). However, to the extent the procedural claims of Norberry are pure questions of law, we may resolve them. Otte v. Covington Township Road Supervisors, 539 Pa. 44, 650 A.2d 412 (1994). With these principles in mind, we address Norberry's claim of procedural deficiencies.

First, Norberry argues that the description provided in the Declaration of Taking is inadequate to meet the requirements of Section 402(b) of the Eminent Domain Code (Code), 26 P.S. § 1-402(b).⁴ The caption itself states that the taking is "for a right-of-way for State Route 0079m, Section 290, a limited access highway in the township of Cranberry." However, Norberry claims the description "in fee simple and a temporary construction easement" does not adequately describe the title, and it further decries DOT's failure to attach a plan of its Declaration of Taking.

Section 402 of the Code does not require a plan to be attached to the filing of a Declaration of Taking. It requires "[a] description of the property condemned sufficient for the identification thereof...." 26 P.S. § 1-402(b)(5). The schedule of property attached to the declaration identifies the deed book, by volume and page number, where the condemned property is located as well as the pages where a plot plan are recorded in the Recorder's Office. We cannot agree that this does not describe the property to be condemned. Further, "fee/simple" and "easement" are terms sufficient to identify the nature of the title acquired. Next, Norberry argues that DOT violated Section 404 of the Code,⁵ 26 P.S. § 1-404. Section 404 provides that "[t]he condemnor, upon filing its declaration of taking, shall on the same day lodge for record a notice thereof in the office of the recorder of deeds ..." and specifies the content of this notice. 26 P.S. § 1-404. The certified record references the filing of something in the Butler County Recorder of Deeds Office on May 3, 2000 at 9:29 a.m. Because the document has not been made part of the record, we are unable to address Norberry's claims that the content of this notice is deficient. DeFelice, 782 A.2d at 593. In any case, if Norberry's argument is that DOT had to include Section 404 information in its Declaration of Taking, it lacks merit. The pleading requirements for a declaration of taking are governed by Section 402 of the Code; the Section 404 requirements for a notice of the taking to be filed with the recorder of deeds do not apply to the declaration of taking itself.

Last, Norberry contends that DOT violated Section 405 of the Code, 26 P.S. § 1-405, because it did not provide notice to the twelve unit owners of the condominium.⁶ It also raises other technical deficiencies arising from Section 405, but, again, we are unable to address them⁷ because the notice is not part of the certified record. DeFelice, 782 A.2d at 593. We are however, able to address whether service was appropriate; this is a pure question of law. Otte, 539 Pa. at 49,650 A.2d at 414.

The Code is the complete compendium of the procedural and substantive law⁸ for all condemnations of property. Section 405(b) provides that the "[t]he notice shall be served within or without the Commonwealth, by any competent adult, in the same manner as a complaint or writ of summons in assumpsit, or by certified or registered mail, to the last known address of the condemnee." 26 P.S. §...