McAnally v. Commonwealth
| Decision Date | 06 June 2016 |
| Docket Number | No. 1385 C.D. 2015,1385 C.D. 2015 |
| Parties | Michael McAnally, Appellant v. Commonwealth of Pennsylvania, Department of Transportation |
| Court | Pennsylvania Commonwealth Court |
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
Michael McAnally appeals from the Order of the Court of Common Pleas of Philadelphia County (common pleas) sustaining the preliminary objections (POs) filed by the Commonwealth of Pennsylvania, Department of Transportation (Department), vacating its prior order granting McAnally's Petition for Appointment of Viewers (Petition), and denying the Petition. On appeal, McAnally argues that common pleas erred in concluding that he was not a "displaced person" pursuant to the Eminent Domain Code1 (Code) and, therefore, was not entitled to damages as a result of the Department's condemnation of theproperty on which McAnally stored heavy equipment. Discerning no error, we affirm.
On October 7, 2013, the Department filed a Declaration of Taking (Declaration) for property located at 4000-4001 Ashland Street in Philadelphia. (Property). (Op. at 1.) Numerous objections and motions related to appointing "a Board of Viewers [were] filed by William Miller, Lourdes Sanchez, and Collins Cars, LLC"2 with common pleas. (Id.) Common pleas held a hearing after which it "appointed a Board of Viewers pursuant to th[is] petition" on September 30, 2014. (Id.)
Subsequently, on January 12, 2015, McAnally filed his Petition averring that he "had arranged with . . . Miller to store heavy equipment on . . . 4001 Ashland Street" but that Miller did not "disclose to [McAnally] that Miller did not own the Property, but was instead a tenant who had defaulted on the lease."3 (Id.; Petition ¶¶ 17, 21.) McAnally moved his heavy equipment from the Property in February 2014 pursuant to a settlement agreement in a replevin action (Replevin Action) he filed against the Property's Owner (Owner). (Op. at 1.) Therefore, McAnally asserted that, under Section 902(a)(2)4 of the Code, he was a displaced personbecause "he had conducted a business on the Property" and "moved from the Property with personal property 'as a direct result of [. . .] the acquisition of other real property . . . undertaken by an acquiring [agency].'" (Op. at 1 (quoting 26 Pa. C.S. § 902(a)(2)(i)).) McAnally maintained that, as a displaced person, he was entitled to just compensation and reasonable moving expenses under Sections 5025 and 902 of the Code. Common pleas granted the Petition and appointed a three-member Board of Viewers on March 13, 2015.
The Department filed POs to the Petition on April 13, 2015,6 objecting that McAnally: was not a displaced person and lacked standing; did not state a cause of action under Section 902(b) of the Code; and was estopped from filing the Petition. Specifically, the Department averred that McAnally was not a displaced person because he did not lawfully occupy the Property where Miller's lease with theOwner expressly prohibited subletting and Miller did not receive written consent from Owner to sublet the Property to McAnally. (POs ¶¶ 6-7, 55-59, 66-76.) Additionally, the Department asserted that McAnally was not a displaced person because he did not move from the Property due to the condemnation but because he was evicted from the Property by Owner's Estate (Estate) on October 1, 2013. (POs ¶¶ 60-64.) Relatedly, the Department averred that the issue of the removal of McAnally's heavy equipment was settled in the Replevin Action in which McAnally asserted that he had to remove his heavy equipment due to Miller's eviction and signed a stipulation acknowledging that the settlement was a final disposition of all claims. (POs ¶¶ 25-54.) McAnally filed an answer in opposition to the POs (Answer) that denied the POs' averments on May 4, 2015.
Common pleas issued a Rule to Show Cause on May 18, 2015, as to why the relief requested by the Department should not be granted, returnable May 28, 2015.7 On June 25, 2015, common pleas held oral argument on the POs and McAnally's Petition. The Department argued that McAnally did not have legal possession of the Property and did not vacate the Property due to the condemnation. The Department pointed to paragraph 6 of the lease agreement between Owner and Miller, which precluded subletting without Owner's written consent, indicated that any such subletting was void, and stated that the Owner hadthe option to terminate the lease if violated.8 (R.R. at 10a.) The Department asserted that Owner never gave his written consent to Miller to sublet the Property to McAnally and, therefore, although there was a sublease between Miller and McAnally, that sublease was void. According to the Department, because the sublease was void, McAnally had no legal right to be on the Property and could not be a displaced person under the Code. The Department further argued that McAnally was not a displaced person because he did not move his personal property as a result of the condemnation but as a result of being evicted prior to the Department's taking of the Property.
McAnally argued that he had a sublease with Miller, ceased operations when told by the Department to not engage in any further business transactions on the Property, and was a person in occupancy of the Property on or before the Department acquired the Property. Under these circumstances, McAnally asserted that he qualified as a displaced person notwithstanding whether the sublease and lease were terminated. The Estate participated in the hearing and asserted that Owner evicted Miller/McAnally from the Property, and McAnally filed the Replevin Action against Owner in October 2013 related to the removal of McAnally's equipment from the Property. The Replevin Action was settled on November 1, 2013, and allowed McAnally to remove his equipment beginning in February 2014.
Following argument, common pleas sustained the Department's POs and vacated its prior order granting the Petition. McAnally requested reconsiderationfrom common pleas, which common pleas denied. McAnally timely appealed common pleas' order sustaining the POs, vacating its prior order, and denying the Petition. McAnally filed a Concise Statement of Errors Complained of on Appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure9 (Statement), arguing that common pleas had erred in finding that McAnally was not a displaced person. Common pleas issued an opinion in support of its order pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure10 responding to the issues McAnally raised in his Statement. Common pleas concluded that McAnally was not a "displaced person" under Sections 103 and 902(a)(2) of the Code for two reasons.
First, common pleas held that the Code requires that the displacement to occur "'as a [direct] result of a written notice of intent to acquire'" and the record here established that McAnally's displacement was not the result of the Department's intent to acquire the Property. (Op. at 5 (quoting 26 Pa. C.S. § 103(emphasis omitted)).) Common pleas held that McAnally "vacated the [P]roperty due to [the] settlement reached during the action in replevin, not as a direct result of the taking." (Op. at 6.) Common pleas explained that McAnally had been evicted from the Property as of October 1, 2013, which occurred prior to the Department's filing of the Declaration on October 7, 2013.
Second, common pleas observed that the definition of displaced person expressly excludes "[a] person that unlawfully occupies the displacement property . . . .," 26 Pa. C.S. § 103, and that "'[a] party who has no legal right to use a property cannot logically be considered a displaced person when the property is taken pursuant to eminent domain powers.'" (Op. at 5 ().) Common pleas concluded that "the record clearly established . . . that [McAnally] did not lawfully occupy the displacement property" because "the lease between [Owner] and . . . Miller not only prohibited the sublease of the Property without written consent, but rendered any sublease entered into by [Miller] void and a legal nullity." (Op. at 5-6.) For these reasons, common pleas held that McAnally was not a displaced person under the Code and was not entitled to any compensation as a result of the Department's taking of the Property.
On appeal,11 McAnally asserts the same arguments as he did before common pleas. In addition, McAnally argues that the lease between Owner and Miller was modified when Owner and Miller entered into an agreement of sale for theProperty and that Owner was aware of McAnally's presence and allowed him to remain on the Property thereby making him a valid subtenant. The Department responds that common pleas correctly rejected McAnally's arguments that he was a displaced person under the Code because McAnally did not lawfully occupy the Property and was not displaced as a direct result of the condemnation. The Department also argues that there is no evidence that suggests that Owner was aware of McAnally's presence on the Property prior to the issuance of the alias writ of possession on October 1, 2013. Finally, the Department asserts that McAnally's alternative argument related to the agreement of sale is waived because McAnally did not raise it before common pleas or in his Statement.12
Initially, we address the Department's assertion that McAnally waived the issue that the terms of the lease were modified by the agreement of sale entered into by Miller and Owner. It is well-settled that the failure to raise an issue in a Statement constitutes a waiver of that issue under Rule 1925(b)(4)(vii) of the Pennsylvania Rules of Appellate Procedure.13 Pa. R.A.P. 1925(b)(4)(vii); Busch v. Dep't of...
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