In Re: Condemnation by the Redevelopment Authority of the City of York, et al. ~ Appeal of: E. J. Mann, et al. (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA In Re: Condemnation by the Redevelopment Authority of the City of York, York, Pennsylvania Appropriating in Fee Simple Certain Lands of Emmett J. Mann and Kelly J. Sprenkle Located at 243 and 245 West Springettsbury Avenue, City of York, York, Pennsylvania Appeal of: Emmett J. Mann and Kelly J. Sprenkle BEFORE: : : : : : : : : : : : : : : : No. 1253 C.D. 2007 Argued: December 11, 2007 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SIMPSON FILED: January 16, 2008 In this eminent domain appeal, the issue is whether Emmett J. Mann and Kelly J. Sprenkle (Condemnees) are entitled to delay damages resulting from a taking of their properties by the Redevelopment Authority (Authority) of the City of York (City) under the Eminent Domain Code (Code).1 The York County Court of Common Pleas (trial court) denied the claim for delay damages upon a finding Condemnees had full and normal use of the properties and did not relinquish 1 The Authority filed its notices of declaration of taking before codification of the Eminent Domain Code (Code) in 2006. See 26 Pa. C.S. §§101-1106. The Code s prior version therefore applies, which is found in the Act of June 22, 1964, Sp. Sess., P.L. 84, as amended, formerly 26 P.S. §§1-101 1-903, repealed by the Act of May 4, 2006, P.L. 112. possession of them. Concluding the record supports the trial court s factual determination, we affirm. Condemnees are business partners who own and rent various properties to college students. In particular, Condemnees owned two properties located at 243 and 245 West Springettsbury Avenue (Subject Properties) in the City. The Subject Properties are in close proximity to York College (College). In late 2002, Condemness filed Vacant Property Affidavits with the City certifying the Subject Properties were vacant and would not be occupied until Condemnees requested the City to inspect and license the premises. The Subject Properties remain vacant. Three years later, on April 13, 2005, the Authority filed notices of declaration of taking (declarations of taking) of the Subject Properties for the purpose of eliminating a blighted area. Condemnees filed preliminary objections to the declarations of taking, which the trial court overruled.2 Upon the Authority s petition, the trial court appointed a board of viewers. The board held hearings on the matter and subsequently awarded Condemnees $167,000 as the combined fair market value of the Subject Properties. It also awarded Condemnees attorney s fees and appraisal costs. The Authority appealed to the trial court and demanded a jury trial. 2 Condemnees sought appellate review of the trial court s order denying their preliminary objections but subsequently discontinued their appeal. Redevelopment Auth. of the City of York v. Emmett J. Mann and Kelly J. Sprenkle, (Pa. Cmwlth., No. 1471 C.D. 2006, filed October 26, 2006). 2 The trial court held a two-day jury trial in May 2007, and a jury awarded Condemnees $166,000 in just compensation. Condemnees filed post-trial motions raising numerous issues, only one of which is appealed here. Specifically, Condemnees requested delay damages in the form of interest at the rate of 6% per year from April 13, 2005 forward.3 The trial court denied Condemnees motion for delay damages. It stated: At trial, the testimony of the witnesses, including the testimony of Condemnee Emmett J. Mann, unquestionably established that [Condemnees] did not relinquish possession, had full and normal use of the [Subject Properties], and that [the Authority] did not take possession of the [Subject Properties]. Since [Condemnees] remained in possession of the [Subject Properties] they are not entitled to delay damages. Govatos v. Redevelopment Auth. of County of Montgomery, [314 A.2d 536 (Pa. Cmwlth. 1974)]. Trial Ct. Op., 7/16/07, at 3. 3 In their post-trial motions, Condemnees also sought an order: assessing costs of the jury s view of the Subject Properties against York County; awarding Condemnees previously agreed-upon counsel fees; and, requiring the Authority to indemnify Condemnees for a municipal lien filed against one of the Subject Properties. Original Record (O.R.) at 11. The trial court granted Condemnees motion for costs and attorney s fees but denied their motion for indemnification. Condemnees do not appeal the latter determination. 3 On appeal,4 Condemnees assert error in the trial court s conclusion they have full and normal use of the Subject Properties and remain in possession. In reaching this conclusion, Condemnees contend the trial court failed to analyze the current case under our Supreme Court s decision in Hughes v. Department of Transportation, 514 Pa. 300, 523 A.2d 747 (1987). As more fully explained below, the Hughes Court held a condemnee is no longer in possession of condemned property for delay damages purposes where he is deprived of the use to which the property was devoted prior to a declaration of taking.5 As a general principle, when land is taken under the power of eminent domain, the owner thereof acquires the right to its value immediately upon appropriation. Pa. Game Comm n v. 21.1 Acres of Land in Wash. Twp., Butler 4 On August 20, 2007, Condemnees filed with this Court a motion for payment of just compensation under former Section 407(b) of the Code, former 26 P.S. §1-407(b), and for sanctions. Condemnees averred the Authority refuses to pay just compensation in accord with the jury s verdict. As relief, Condemnees sought judgment in the jury verdict amount. Asserting the Authority s actions constituted bad faith, Condemnees requested additional attorney s fees and an increase in the delay damages interest rate from 6% to 18%. Condemnees also filed a motion for writ of mandamus seeking an order compelling the Authority to pay the jury verdict. The Authority denied the material allegations of both motions. Because the jury verdict was not reduced to judgment, we denied Condemnees motions without prejudice and instructed Condemnees to praecipe the trial court for entry of judgment. Condemnees complied. See In re: Condemnation by the Redevelopment Auth. of City of York, (Pa. Cmwlth., No. 1253 C.D. 2007, filed September 17, 2007). 5 In eminent domain cases, our review is limited to determining whether the trial court committed an abuse of discretion or error of law, and where the trial court made findings of fact, to determine whether the findings are supported by substantial evidence. Dep t of Transp. v. Dixon Ticonderoga Co., 500 A.2d 938 (Pa. Cmwlth. 1985). Substantial evidence is such relevant evidence a reasonable mind might accept as adequate to support a conclusion. McGlawn v. Pa. Human Relations Comm n, 891 A.2d 757 (Pa. Cmwlth.), appeal denied, 588 Pa. 786, 906 A.2d 545 (2006). 4 County, 433 A.2d 915, 916 (Pa. Cmwlth. 1981). When the value of the land taken is definitively ascertained, the valuation dates back to the time of taking, and the owner is entitled to compensation for delay in payment unless he remains in possession of the land after condemnation. Id. Delay damages constitute separate compensation for an owner s loss of use of property during the period after he relinquishes possession and before he receives just compensation. Ridley Twp. v. Forde, 459 A.2d 449 (Pa. Cmwlth. 1983). In this case, the statutory right of delay damages is found in former Section 611 of the Code. It provides: The condemnee shall not be entitled to compensation for delay in payment during the period he remains in possession after the condemnation, nor during such period shall a condemnor be entitled to rent or other charges for use and occupancy of the condemned property by the condemnee. Compensation for delay in payment shall, however, be paid at the rate of six percent per annum from the date of relinquishment of possession of the condemned property by the condemnee, or if the condemnation is such that possession is not required to effectuate it, then delay compensation shall be paid from the date of condemnation: Provided, however, That no compensation for delay shall be payable with respect to funds paid on account, or by deposit in court, after the date of such payment or deposit. Compensation for delay shall not be included by the [board of] viewers or the court or jury on appeal as part of the award or verdict, but shall at the time of payment of the award or judgment be calculated as above and added thereto. There shall be no further or additional payment of interest on the award or verdict. Former 26 P.S. §1-611 (emphasis added). 5 In Hughes, the Supreme Court first interpreted the phrase remains in possession as used in former Section 611. There, the Department of Transportation (PennDOT) notified three property owners in 1978 it intended to take portions of their farms. As a result, each property owner modified the use of his property. In late 1979, PennDOT filed declarations of taking for all three parcels and made offers of just compensation. The property owners rejected PennDOT s offers, and a board of viewers subsequently found in favor of the property owners. PennDOT appealed to the common pleas court, and a jury also found in favor of the property owners. PennDOT ultimately paid the jury s award but did not include delay damages in its payments. After a non-jury trial on the issue of delay damages, the common pleas court ultimately held former Section 611 unconstitutional on the ground it failed to provide just compensation in cases where a taking diminishes the use of land. Reversing the common pleas court, the Supreme Court explained former Section 611 did, in fact, provide for just compensation in such circumstances: In that twilight of eminent domain, between present possession in the owner and the future right of possession by the Commonwealth, all the possible ordinary concomitants of possession repose in the actual potential of the land. If the land cannot be put to its ordinary use because of the condemnation, such a result, without adequate compensation, would be an unjust taking and a waste of the uses of land. It follows that when the condemnation deprives the landowner of the normal uses of the land, pending physical possession by the Commonwealth, compensation must also be intended. Therefore, we hold that where a declaration of taking deprives a landowner of the full and normal use of his property, as established by the use to which his 6 property was devoted prior to the declaration, then that landowner shall no longer be considered in possession within the meaning of section 611, and the condemnee may claim delay damages from the date of the declaration of taking. Thus, we conclude that section 611, when so construed, does pass constitutional muster in determining when delay damages go into effect. Id. at 309, 523 A.2d at 751-52 (italics in original; emphasis added). Noting PennDOT s refusal to inform the property owners of the actual date of condemnation forced the property owners to cease all crop growing operations, the Court determined PennDOT infringed on the property owner s full and normal use of the condemned lands. Delay damages were therefore appropriate. Here, Condemnees assert the Authority, acting in concert with the City and College, deprived Condemnees of full and normal use of the Subject Properties, that is, they can no longer rent the Subject Properties. In particular, Condemnees rely on the testimony of Emmett Mann.6 In addition to explaining why Condemnees filed the Vacant Property Affidavits, Mann testified Condemnees intended to lease the Subject Properties in early 2005. 6 Mann Limited portions of the trial proceedings are transcribed for appeal purposes: rulings on pre-trial motions, Condemnee Mann s testimony, and reading of the jury s verdict. Reproduced Record (R.R.) at 60-99. An appellant bears responsibility for requesting transcripts of trial proceedings. Pa. R.A.P. 1911; Salameh v. Spossey, 731 A.2d 649 (Pa. Cmwlth. 1999). The trial court docket here indicates Condemnees failed to file either a request for transcripts in accord with Appellate Rule 1911 or an application for diminution in transcription. See Pa. R.A.P. 1922(b)(1). While not fatal to our review, the failure to include the entire trial proceedings undermines our ability to determine whether the trial court admitted into evidence the exhibits on which Condemnees rely. This is a concern because the exhibits appearing in the reproduced record were not admitted into evidence during Mann s testimony. R.R. at 65-95. In addition, the exhibits do not appear on the trial court s exhibit lists, are not attached to any other trial exhibit, and are not listed on the parties pre-trial memoranda. O.R. at 12, 13, 25, 26. In any event, the Authority does not object to the contents of the reproduced record. 7 indicated several students executed rental leases prior to the declaration of taking, but the College prevented the students from occupying the Subject Properties. Reproduced Record (R.R.) at 74. As a result, Condemnees were forced to return the students money. Id. at 75. In addition, Mann testified Condemnees were unable to insure the Subject Properties after the Authority filed its declarations of taking. Id. at 78. On cross-examination, Mann admitted the Subject Properties remained vacant as of late 2002. Id. at 81. Mann also acknowledged he did not request the City to inspect the Subject Properties for leasing purposes, indicating that in his experience the City only requires the premises to be inspected within a year of leasing and not before actual occupation. Id. at 81-82; 93. Mann further testified either the City or the Authority removed the electrical meters in April 2005. Id. at 83-84. Finally, and of particular import, Mann admitted Condemnees performed repair work on the Subject Properties after the Authority filed its declarations of taking. Id. at 84-87. Whether a condemnee remains in possession of condemned property is a question of fact to be resolved by the fact-finder. 21.1 Acres of Land in Wash. Twp., Butler County; cf. Princeton Sportswear Corp. v. Redevelopment Auth. of City of Phila., 460 Pa. 274, 333 A.2d 473 (1975) (where preliminary objections and answer raised factual question as to whether condemnor tendered delay compensation, common pleas court s failure to hold a hearing and issue findings necessitated vacating an order sustaining preliminary objections); Millcreek Twp. v. N.E.A. Cross Co., 620 A.2d 558 (Pa. Cmwlth. 1993) (court must hold 8 evidentiary hearing where preliminary objections in eminent domain proceedings raised issues of fact); Dep t of Transp. v. Hess, 423 A.2d 434 (Pa. Cmwlth. 1980) (record did not support common pleas court s finding condemnor took possession of property on date certain; case remanded for further findings). As noted, the trial court here specifically referenced Mann s testimony to find Condemnees retained normal use of the Subject Properties and remained in possession. Reviewing Mann s testimony in a light most favorable to the Authority as verdict winner on this issue, Clark v. Department of Transportation, 710 A.2d 148 (Pa. Cmwlth. 1998), it is clear the trial court credited that portion of Mann s testimony establishing Condemnees retain access to the Subject Properties for maintenance work. In addition, Mann acknowledged that the Subject Properties remained vacant for three years prior to the declarations of taking and that he did not apply to the City for licensing and inspection. As fact-finder, the trial court was free to accept Mann s testimony Condemnees made repairs to the Subject Property after the declarations of taking and to reject any inconsistent testimony. Thomas A. McElwee & Son, Inc. v. Se. Pa. Transp. Auth., 896 A.2d 13 (Pa. Cmwlth.), appeal granted, 592 Pa. 776, 926 A.2d 444 (2006). Simply, Mann s own credited testimony supports the trial court s determination Condemnees remained in possession and have full use of the Subject Properties. 21.1 Acres of Land in Wash. Twp., Butler County (a condemnee can by his own admissions defeat the favorable presumption of 9 entitlement to delay damages). Because Condemnees remain in possession of the Subject Properties, delay damages are not warranted here. Former 26 P.S. §1-611.7 Accordingly, we affirm. ROBERT SIMPSON, Judge 7 In addition, we note the documentary evidence upon which Condemnees rely is not clear and, as a result, the trial court could afford it little evidentiary weight. Thomas A. McElwee & Son, Inc. v. Se. Pa. Transp. Auth., 896 A.2d 13 (Pa. Cmwlth.), appeal granted, 592 Pa. 776, 926 A.2d 444 (2006) (fact-finder has discretion to weigh evidence). Particularly, Condemnees include in the reproduced record two leases and a general release. The general release protects Condemnees from claims arising out of lease agreements for the Subject Properties. However, the individuals who executed the leases are not parties to the general release. R.R. at 45-46; 49-59. Mann did not explain this discrepancy. See id. at 65-95. 10 IN THE COMMONWEALTH COURT OF PENNSYLVANIA : : Condemnation by the Redevelopment : Authority of the City of York, York, : Pennsylvania : : No. 1253 C.D. 2007 Appropriating in Fee Simple : Certain Lands of Emmett J. Mann : and Kelly J. Sprenkle : Located at 243 and 245 West : Springettsbury Avenue, City of : York, York, Pennsylvania : : Appeal of: Emmett J. Mann and Kelly : J. Sprenkle : In Re: ORDER AND NOW, this 16th day of January, 2008, the order of the York County Court of Common Pleas is AFFIRMED. ROBERT SIMPSON, Judge

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