IN RE CONDEMNATION OF REAL ESTATE
| Decision Date | 14 May 2004 |
| Citation | 851 A.2d 992 |
| Parties | In re CONDEMNATION OF REAL ESTATE BY the BOROUGH OF ASHLAND, Schuylkill County, Pennsylvania Appeal of Joseph J. Kenenitz and Michelle L. Kenenitz, his wife. |
| Court | Pennsylvania Commonwealth Court |
Anthony J. Urban, Pottsville, for appellants.
Chester C. Corse, Jr., Pottsville, for appellee.
BEFORE: COLINS, President Judge, and LEADBETTER, Judge, and KELLEY, Senior Judge.
OPINION BY President Judge COLINS.
Joseph and Michelle Kenenitz (Kenenitzes) appeal from an order of the Court of Common Pleas of Schuylkill County that denied their preliminary objections to a Declaration of Taking filed by the Borough of Ashland (Ashland) and which further ordered the parties to proceed pursuant to the Eminent Domain Code1 upon a finding that there had been no abuse of discretion in the proceeding on the part of the officials of Ashland. We affirm the trial court. Ashland claims that the appeal is untimely and has filed a motion to quash. We deny the motion.
On August 29, 2002, Ashland filed a declaration of taking of the Kenenitzes property after Ashland's council unanimously passed an ordinance condemning the property. On September 30, 2002, the Kenenitzes filed preliminary objections to which Ashland filed a timely answer. Along with its answer Ashland filed an amended declaration of taking at the same term and number after again unanimously passing a new ordinance authorizing the condemnation. The Kenenitzes then filed preliminary objections to the Amended Declaration that were identical to those filed to the original Declaration. At a conference with the trial judge the parties narrowed the preliminary objections to the following questions: 1) whether there was a need for condemnation in the first place; 2) whether less restrictive alternatives had been properly considered; 3) whether members of the borough council had acted in bad faith and for improper purposes in the proceeding; 4) whether the Eminent Domain Code permitted the filing of preliminary objections based on violations of the laws commonly known as the Right to Know Act2 and the Sunshine Act;3 and 5) whether the filing of the amended declaration was a revocation of the original declaration. Issues one, two, and three were to be determined by the trial court after the submission of deposition testimony and the briefs of the parties. Issues four and five were to be decided upon the submission of briefs.
On February 6, 2002 the trial court dismissed the objections to issues four and five. The Kenenitzes filed a motion for reconsideration of that order and, alternatively, a request to certify the February 6 order as appealable. On April 1, 2003 the trial court entered an order dismissing the motion for reconsideration and declining to certify the February 6 order as appealable.
Counsel for the Kenenitzes deposed all the members of council, the mayor, the borough manager and Joseph Kenenitz on March 26, 2003. On May 21, 2003 the trial court directed the parties to file briefs by June 13, 2003 on the remaining objections. Ashland filed a timely brief; the Kenenitzes did not file a brief.
The trial court dismissed the remaining objections in an order dated July 7, 2003. The Kenenitzes filed a notice of appeal on July 31, 2003. Ashland filed a motion to quash on the grounds that the Kenenitzes had not filed timely appeals of the orders of February 6, 2003, and April 1, 2003.
The questions we are asked to determine are 1) whether the appeal was timely filed; 2) whether preliminary objections based on violations of the Sunshine Act and the Right to Know Act may be filed to a declaration of taking; and 3) whether the trial court erred in determining that there was no abuse of discretion by officials of the Borough of Ashland and that their condemnation of the Kenenitzes' property was not motivated by fraud, collusion, arbitrariness, or bad faith.4
Ashland maintains that Pa. R.A.P. 311(e), which states that an appeal may be taken as of right from an order overruling preliminary objections to a declaration of taking, mandated an immediate appeal of the February 6, 2003 order disposing of part of the preliminary objections. Ashland reasons that an immediate appeal is mandated because Pa. R.A.P. 311(e) creates an exception to the general rule of Pa. R.A.P. 341 which permits appeals only of final orders, and that Rule 311(e) should therefore control. The Kenenitzes counter that they were not required to appeal the February 6, 2003 order because it was not a final order for the purpose of addressing the preliminary objections in this case in that it did not dispose of all the preliminary objections pending before the trial court and that the filing of an appeal to the February 6, 2003 order would have resulted in multiple appeals because they would have had to file a separate appeal to the order of July 7, 2003 that dismissed the remaining objections. The very wording of Rule 311(e) belies Ashland's argument.
Rule 311(e) provides, in pertinent part, "An appeal may be taken as of right from an order overruling Preliminary Objections to a Declaration of Taking ..." The rule is permissive, not instructional; it makes clear that that a party in an eminent domain case need not wait until the court disposes of all the claims and the parties as required by Rule 341. Common sense and judicial economy dictate that an appeal should not be filed to the dismissal of preliminary objections in an eminent domain case until the trial court has entered orders disposing of all preliminary objections that have been filed in that case. We reach this conclusion notwithstanding the provisions of Pa. R.A.P. 311(g) that provides that the failure to immediately appeal the dismissal of preliminary objections in an eminent domain case shall constitute a waiver of the right to appeal. No such waiver shall occur until after all preliminary objections have been disposed of by the trial court. To do otherwise would mandate redundant, piecemeal appeals and would be contrary to the interests of judicial economy. See, e.g., Smith v. City of Philadelphia, 512 Pa. 129, 516 A.2d 306 (1986); Clark v. Troutman, 509 Pa. 336, 502 A.2d 137 (1985); Commonwealth v. Allen 506 Pa. 500, 486 A.2d 363 (1984). All preliminary objections were not disposed of in this case until the trial court entered its order dismissing the final preliminary objections on July 7, 2003. The Kenenitzes' appeal filed on July 31, 2003 was timely filed as to all the orders of the trial court. Accordingly, Ashland's motion to quash is denied.
The Kenenitzes next complain that the trial court improperly dismissed their preliminary objections based on violations of the Right to Know Act and the Sunshine Law. Ashland asserts that the Eminent Domain Code limits the scope of preliminary objections to those enumerated in Section 406 and that neither Act is mentioned there as a basis for preliminary objections.
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