In re Powell
| Decision Date | 06 July 2021 |
| Docket Number | No. 688 C.D. 2020,688 C.D. 2020 |
| Citation | 260 A.3d 298 |
| Parties | IN RE: Condemnation of Premises Owned by Roy E. POWELL, II, in the Township of Logan by Altoona/Logan Township Mobile Emergency Medical Department Authority Appeal of: Roy E. Powell, II |
| Court | Pennsylvania Commonwealth Court |
Michael F. Faherty, Hershey, for Appellant.
Daniel L. Stants, Altoona, for Appellee Altoona/Logan Township Mobile Emergency Department Authority.
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge (P.), HONORABLE ANNE E. COVEY, Judge
OPINION BY JUDGE McCULLOUGH
Roy E. Powell, II (Powell) appeals from the June 17, 2020 order of the Court of Common Pleas of Blair County (trial court), which denied his motion for reconsideration of the order overruling his preliminary objections to the Declaration of Taking1 (Declaration) filed by the Altoona/Logan Township Mobile Emergency Medical Department Authority (AMED), that sought to condemn Powell's property (Property) for the purpose of installing a powerline to provide electric service to its new ambulance station currently under construction.
The general question before this Court is whether the trial court erroneously overruled Powell's preliminary objections.
Although numerous preliminary objections were raised, we focus on whether AMED had the authority to condemn for the purpose of installing electric transmission lines and whether the Declaration adequately described the property sought to be taken.
On November 19, 2019, AMED filed the Declaration pursuant to the Municipality Authorities Act (MAA) in the trial court alleging the following. (Reproduced Record (R.R.) at 1-6.)2 AMED, the condemnor, is a municipal authority situated in Blair County. Id . at 2. The condemnee is Powell, a resident of Altoona, Pennsylvania, and Logan Township. Id . The Property is located at 820 Shand Avenue, Altoona, Pennsylvania. Id . The condemnation was authorized by resolution of the Board of Directors of AMED (Resolution). Id . The stated purpose of the condemnation is "to acquire possession of a temporary and permanent easement for the installation of an electric power line necessary for the construction of an ambulance facility and business office of [AMED]." Id . The description of the portion of the Property to be condemned was identified pursuant to an exhibit attached to the Declaration. Id . at 2-3. This exhibit consists of a one-page taxation map, identifying the Property with a faintly bold outline around it, bearing the tax parcel number 14.00-15AR-048.00-000 and instrument number 200916068. Id . at 4-5. The Declaration alleged that notice of the condemnation was recorded with the Recorder of Deeds of Blair County and that a plan showing the condemned Property could be inspected at AMED's offices. Id . at 3. The Declaration further stated that the title sought to be acquired was fee simple absolute. Id . The same day, AMED filed a bond (Bond) pursuant to section 303 of the Eminent Domain Code (Code), 26 Pa.C.S. § 303. (R.R. at 7.) The Bond identified the same Property, using the same description as the Declaration. Id .
On December 20, 2019, Powell filed preliminary objections to the Declaration. (R.R. at 10-17.) The first preliminary objection alleged that AMED is not a valid municipal authority under the MAA, and therefore cannot exercise eminent domain power under section 5615(a)(1) of the MAA, 53 Pa.C.S. § 5615(a)(1). (R.R. at 11.) The second preliminary objection argued that even if AMED was a valid municipal authority, the acquisition of acquiring an easement for the installation of an electric powerline is not a valid exercise of eminent domain power for a municipal authority under section 5607(a) of the MAA, 53 Pa.C.S. § 5607(a). Id . Preliminary objection three averred that only a public utility governed by the Pennsylvania Public Utility Code3 has the power to condemn property for erection of electrical power lines under section 1511(a)(2) of the Associations Code,4 15 Pa.C.S. § 1511(a)(2), not a municipal authority such as AMED. Id . at 12. The fourth preliminary objection argued that the Resolution authorizing the Declaration is inadequate under 26 Pa.C.S. § 302(b)(3) because it is ambiguous and overly broad as to what property rights are to be acquired and what portion of the Property is to be condemned. Id .
Preliminary objection number five alleged that the description of the property to be condemned in the Declaration is insufficient under 26 Pa.C.S. § 302(b)(5). Id . at 12-13. The sixth preliminary objection averred that the Declaration inadequately stated the nature of the title sought to be acquired because it alleged that the title was to be a temporary and permanent easement, but also in fee simple absolute. Id . at 13. Preliminary objection seven argued that the Declaration failed to satisfy the requirement that just compensation be secured under the Code, 26 Pa.C.S. § 302(b)(8), because just compensation had not been secured. Id . The final preliminary objection alleged that the proposed electrical transmission line is prohibited under section 1511(b)(1)(i) of the Associations Code, 15 Pa.C.S. § 1511(b)(1)(i), because it is within 100 meters of a dwelling home. Id . at 14. Based on the foregoing, Powell requested that the Declaration be dismissed, and that reasonable fees and costs be awarded. Id .
On March 17, 2020, the trial court overruled Powell's preliminary objections. (R.R. at 68.) The trial court explained that the preliminary objections only raised legal issues, and therefore an evidentiary hearing was not necessary. (R.R. at 57.) With respect to the first preliminary objection, the trial court held that AMED was a valid joint authority under the MAA, organized for the purpose of providing medical emergency services, and that it is entitled to exercise the power of eminent domain as a municipal authority. Id . at 60. The trial court held that AMED's eminent domain authority was the same as the class of the municipality that organized it, and that because Altoona is a third class city,5 AMED is entitled to exercise the power of eminent domain consistent with a third class city. Id . See 53 Pa.C.S. § 5616(b) ; 11 Pa.C.S. §§ 10101 -14207. The trial court reasoned that under section 12801 of the Third Class City Code, 11 Pa.C.S. § 12801, AMED is permitted to condemn property "for the erection of electric power and light plants, as well as public buildings," and therefore, its condemnation for an easement on the Property for the installation of electrical power lines was valid. (R.R. at 60-61.) The trial court dismissed the second preliminary objection on the same grounds, i.e. , that AMED is a municipal authority, has the power to condemn as a third class city, and therefore, can condemn property for the erection of electric power and light plants, and by extension, electric power transmission. Id . at 61-62.
The trial court dismissed the third preliminary objection on the grounds that AMED is not a privately owned utility corporation and is therefore not bound by the limitations that would apply to such an entity. Id . at 62. The fourth preliminary objection was dismissed on the grounds that the Resolution adequately described the property rights being acquired, the nature of the easement being acquired, and the location of the easement being acquired, and that this preliminary objection was not permitted under section 306(a) of the Code, 26 Pa.C.S. § 306(a). Id . at 63-64. The trial court dismissed the fifth objection, holding that Powell was well aware of the nature and extent of the easement sought in the condemnation, and that the language in the Declaration was clear as to the state of title being taken and where the easement was to be located on the Property. Id . at 64-65. Moreover, the trial court explained that AMED has statutory authority under section 12803 of the Third Class City Code, 11 Pa.C.S. § 12803, to take the easement "as a fee simple interest as a matter of law." Id . at 65.
The sixth preliminary objection was overruled on the grounds that the nature of the title to be acquired was adequately described. Id . at 65. The trial court dismissed the seventh preliminary objection, holding that AMED filed a bond with the Prothonotary of Blair County pursuant to section 303(a) of the Code, 26 Pa.C.S. § 303(a). Id . at 66. Finally, the trial court overruled the last preliminary objection, number eight, on the grounds that this objection was not permissible under section 306(a)(3) of the Code, 26 Pa.C.S. § 306(a)(3), and that there is currently a powerline installed at the existing location, which is already within 100 meters of the Property even though it may be prohibited under section 1511(b)(1)(i) of the Associations Code, 15 Pa.C.S. § 1511(b)(1)(i). Id . at 66-67.
On March 26, 2020, Powell filed a motion for reconsideration. Generally, Powell reiterated the arguments he made in his preliminary objections. Notably, Powell argued that the trial court erred in failing to hold an evidentiary hearing as required under section 306(f)(2) of the Code, 26 Pa.C.S. § 306(f)(2), because facts are in dispute. Id . at 71. Next, Powell argued that the trial court erred in concluding that the nature of the easements being acquired are both easements and fee simple absolute. Id . He argued that this conclusion by the trial court was problematic because it would inhibit an assessor from making an accurate assessment, and that taking a fee simple interest was excessive, where an easement would suffice. Id .
On March 27, 2020 the trial court granted the motion and scheduled a hearing to consider the motion for reconsideration on the merits.6 (R.R. at 98.) On April 1, 2020, the trial court supplemented its March 27, 2020...
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