In Re: Condemnation by PennDOT, of Right-Of-Way for SR 0022 in the Twp. of Frankstown Stewart M. Merritts, Jr. v. PennDOT

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Condemnation by the :
Commonwealth of Pennsylvania, :
Department of Transportation, of :
Right-Of-Way for State Route 0022, :
Section 034, in the Township of :
Frankstown :
:
Stewart M. Merritts, Jr., :
Appellant :
:
v. : No. 763 C.D. 2017
: Argued: February 5, 2018
Commonwealth of Pennsylvania, :
Department of Transportation :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: February 26, 2018

Stewart M. Merritts, Jr. (Condemnee) appeals from the February 8, 2017
Order of the Court of Common Pleas of Blair County (trial court), which, in relevant
part, overruled Condemnee’s preliminary objections (POs) to the June 1, 2016
Declaration of Taking (Declaration) filed by the Commonwealth of Pennsylvania
(Commonwealth), Department of Transportation (Department), to acquire a
drainage easement and temporary construction easement on Condemnee’s Property.1
On appeal, Condemnee argues the trial court erred in denying his POs because: (1)
the trial court should have held an evidentiary hearing prior to holding oral
arguments on the legal issues; (2) the Commonwealth lacks the legal authority to
exercise eminent domain to condemn Condemnee’s Property; (3) the condemnation
is intended to benefit a private enterprise and is excessive; and (4) the condemnation
violates the Storm Water Management Act (Storm Water Act).2

I. Background
The facts relevant to our review are as follows. Condemnee’s Property
consists of two parcels of land located in Frankstown Township (Township), Blair
County, one that is 1.11 acres and one that is 0.43 acres, which run along State Route
0022 (Route 22). (Trial Ct. Op., Feb. 8, 2017, Finding of Fact (FOF) ¶ 1.) The
Property borders the Frankstown Branch of the Juniata River. Condemnee’s
“[P]roperty was part of the original land warrant given to Daniel Lowery by the Penn
family proprietorship in 1755 and subsequent patent [that was] given to Andrew
Lowery in 1783[.]” (Id. ¶ 2.)
On June 1, 2016, the Department, which is an agency of the Commonwealth,
filed the Declaration seeking to acquire “a one thousand one hundred fifty (1150)
square foot drainage easement and two thousand eight hundred ninety-six (2896)
square foot temporary construction easement” on Condemnee’s Property. (Id. ¶¶ 3,
4.) The condemnation of a part of Condemnee’s Property

was [part of] an intersection improvement project called the Canoe
Creek Intersection Improvement Project [(Project)] to reroute and

1
The trial court also granted the Department’s Motion for Writ of Possession and denied
the Department’s Motion to Dismiss Preliminary Objections to the taking as moot.
2
Act of October 4, 1978, P.L. 864, as amended, 32 P.S. §§ 680.1-680.17.

2
 realign certain intersections along Route 22, add center turn lanes at
certain intersections, and effect other safety improvements, including
drainage.

(Id. ¶ 5.) Condemnee filed nine POs to the Declaration3 asserting, relevant here,
that: the Commonwealth did not have the authority to condemn his Property, (First
PO ¶¶ 1-15, Reproduced Record (R.R.) at 23-26); the taking was for a private
enterprise in violation of the Eminent Domain Code (Code)4 and was excessive,
(Second PO ¶¶ 1-11, R.R. at 26-28; Third PO ¶¶ 1-10, R.R. at 28-29; Eighth PO
¶¶ 3, 5-6, R.R. at 35-36); and the taking violates the Storm Water Act, (Eighth PO
¶¶ 6-12, R.R. at 35-37). The Department filed a Motion to Dismiss the POs (Motion
to Dismiss) and a Motion for a Writ of Possession.
The trial court heard argument on December 21, 2016, at which Condemnee
presented his chain of title and the parties expressed their respective positions.
Condemnee requested an evidentiary hearing on the POs. The trial court proceeded
with oral argument, indicating it would schedule an evidentiary hearing if issues
arose that required the taking of evidence. Subsequently concluding that evidence
was required, the trial court reconvened the matter for an evidentiary hearing on the
POs on January 11, 2017. The Department presented exhibits and the testimony of
several witnesses, including the civil engineer who is supervising the Project
(Engineer), who was accepted as an expert witness. Condemnee presented his own
testimony and exhibits.

3
Pursuant to Section 306(a)(1), (3)(i), (iii) of the Eminent Domain Code, 26 Pa. C.S.
§ 306(a)(1), (3)(i), (iii), a condemnee may, within 30 days of being served with a notice of
condemnation, “file preliminary objections to the declaration of taking” that challenge, inter alia,
“[t]he power or right of the condemnor to appropriate the condemned property unless it has been
previously adjudicated[,]” and the declaration of taking.
4
26 Pa. C.S. §§ 101-1106.

3
 The Department’s evidence described the Project Plan, which includes:
replacing an existing 15-inch drain pipe with an 18-inch drain pipe across the
Property “to upgrade drainage to existing standards;” and replacing an existing 24-
inch drain pipe that drains into a stream with a 42-inch drain pipe “to help slow down
pipe drainage and help stem the effects of erosion into the stream and the adjoining
river.” (FOF ¶¶ 11, 14, 16, 18.) Due to safety and efficiency concerns associated
with the existing 15-inch pipe, the current location could no longer be used. The
Department will own and maintain the drain pipes, and the 18-inch drain pipe will
drain water away from Route 22.
As part of the overall Project, certain Township roads, including Flowing
Spring Road, which runs along Condemnee’s smaller parcel and along part of
Condemnee’s larger parcel, would be permanently removed by the Township.
Township intended, subject to the requirements of The Second Class Township
Code,5 to vacate and “dedicate Flowing Spring Road and the accompanying right-
of-way to Rails to Trails of Central Pennsylvania (Rails to Trails).” (Id. ¶¶ 7, 23.)
This part of the Project “is to connect a trail for non-motorized use to Canoe Creek
State Park with the Lower Trail Station, controlled by Rails to Trails . . . .” (Id. ¶
21.) Part of Canoe Creek State Park is next to property owned by Rails to Trails,
although the properties are separated by Route 22. The proposed trail will utilize
“the closed Flowing Spring Road and right-of-way to connect” the two. (Id. ¶ 22.)
Rails to Trails will be responsible for maintaining the trail.
Also as a part of the Project, the Department will construct a driveway for
Condemnee to access Route 22 from the 0.43 acre parcel; however, current access
to Condemnee’s 1.11 acre parcel requires him to cross over a neighbor’s property

5
Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §§ 65101-68701.

4
because he cannot access that parcel from his smaller parcel due to its steep grade.
The plans related to the proposed trail have no effect on the amount of Condemnee’s
Property the Department sought to condemn in the Declaration.

II. Trial Court’s Opinion
The trial court issued an opinion addressing each of Condemnee’s POs.
Condemnee’s first relevant PO asserted that the Commonwealth lacks “‘standing,
power, right, jurisdiction or authority for condemnation or to take land in this instant
matter’” because the title to the Property dates back to the land warrant issued to
Daniel Lowery in 1755 from the William Penn proprietary, which subsequently
deeded it to Alexander Lowery, “who received a patent in 1783.” (Trial Ct. Op. at
7.) Condemnee argued that, because the land patent provided a claim that was free
from all restrictions and reservations, the only way the Commonwealth could
condemn the land was if it had a connection or ownership interest in the land at the
time it became a state. Because the Commonwealth never owned or claimed
possession to his land, it “does not have privity of title with the Condemnee, which,
the Condemnee assert[ed], must be proven to take the easement in question.” (Id.)
The trial court rejected Condemnee’s contention that, in order to exercise
eminent domain over his Property, the Commonwealth had to have some connection
or have privity of title to the Property. The trial court held that the Commonwealth’s
eminent domain power does not derive from it having privity with the original title
holder or having a relationship at the time of the original conveyance but from its
power as a sovereign, a power that cannot be extinguished. It concluded that, while
the United States and Pennsylvania Constitutions and legislative enactments could
place limits on the Commonwealth’s ability to use this power, such “power is

5
inherent in the Commonwealth’s existence and is not reliant on constitutional and
legislative enactment.” (Id. at 10 (citing In re Legislative Route 1018, Section 4,
Lower Chichester Twp., Del. Cnty., 222 A.2d 906, 908 (Pa. 1966)).) The trial court
pointed out that to accept Condemnee’s argument would allow any landowner who
can trace his or her deed back to the original colonial grant “to circumvent over one
hundred fifty (150) years of eminent domain law” and would “usurp the sovereignty
of the Commonwealth by claiming a title in land superior to the sovereign power of
eminent domain.” (Id. at 10, 13.)
The trial court considered Condemnee’s other arguments about why the
Commonwealth lacked jurisdiction to take his Property and likewise concluded that
they were without merit. In particular, the trial court held that the cases Condemnee
cited were not applicable because they did not involve the use of eminent domain to
acquire an easement.
Condemnee’s next pertinent POs asserted that the Commonwealth exceeded
its authority to condemn property because of the transfer of the right-of-way in
Flowing Spring Road to Rails to Trails, a private entity, and that the condemnation
was excessive because there was no need to change the size of the drain pipes.
Condemnee asserted this transfer is a “silent” condemnation of lands across his
property via an agreement between the Department, Township, and Rails to Trails.
(Id. at 14.) The trial court dismissed all of Condemnee’s arguments related to the
future transfer of Township’s right-of-way to Rails to Trails because the Declaration
at issue concerned only the Department’s taking of the 1,150 square foot drainage
easement and the 2,896 square foot temporary construction easement. Therefore,
the trial court concluded, the issue of Flowing Spring Road, which is controlled by
Township, was collateral to the proceedings before it, and the POs against the

6
Department related to Flowing Spring Road were not proper preliminary objections
under the Code. Additionally, the trial court recognized that condemning these
easements to install larger drain pipes was for a public purpose because the new
pipes were part of the Project to improve the Route 22 corridor by addressing
drainage, safety, and environmental concerns.
Condemnee’s last relevant PO averred that the taking violated the Storm
Water Act by vesting maintenance of the drainage pipes being installed in Rails to
Trails, a private entity. The trial court held that this objection also was collateral to
the proceeding on this Declaration and not a proper basis for a preliminary objection
under the Code. However, it stated that, even if the objection was not collateral,
Condemnee’s contention would fail because the Department’s Engineer testified that
the new drain pipes were a part of the Project and the Department would be
responsible for maintaining the new pipes. Accordingly, the trial court overruled
this PO.
Condemnee appealed6 and, at the direction of the trial court, filed a Statement
of Errors Complained of on Appeal (1925(b) Statement) pursuant to Rule 1925(b)
of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 1925(b).7 Therein,
Condemnee raised the following: whether the trial court erred in denying all of his
preliminary objections; whether the trial court “erred by ruling that the

6
Condemnee appealed to the Superior Court, which transferred his appeal to this Court.
7
Rule 1925(b) provides:

If the judge entering the order giving rise to the notice of appeal (“judge”) desires
clarification of the errors complained of on appeal, the judge may enter an order
directing the appellant to file of record in the trial court and serve on the judge a
concise statement of the errors complained of on appeal (“Statement”).

Pa.R.A.P. 1925(b).

7
Commonwealth had statutory or any authority to condemn the land in question”;
whether the trial court “erred in finding eminent domain applies even though this is
a taking for a private enterprise”; and whether the trial court “erred by finding that
this condemnation would not violate the” Storm Water Act. (Condemnee’s 1925(b)
Statement, Condemnee’s Br., App. A3.) The trial court issued a responsive opinion
pursuant to Pa.R.A.P. 1925(a), providing further explanation for overruling
Condemnee’s POs. This matter is ready for disposition by this Court.8, 9

III. Discussion
A. Whether the trial court erred by hearing oral argument before holding an
evidentiary hearing on Condemnee’s POs.
Condemnee first argues, based on Department of Transportation v. Florek,
455 A.2d 1263 (Pa. Cmwlth. 1983), and Werts v. Luzerne Borough Authority, 329
A.2d 335 (Pa. Cmwlth. 1974), that the trial court erred by hearing oral argument on
the POs on December 21, 2016, prior to its holding an evidentiary hearing on January

8
An appellate court’s review of a trial court’s decision to sustain or overrule preliminary
objections to a declaration of taking “is limited to a determination of whether the trial court abused
its discretion or committed an error of law.” In re Redevelopment Auth. of City of Phila., 938 A.2d
341, 345 (Pa. 2007).
9
Condemnee filed a Petition for Stay (Petition) with this Court, seeking to stay the work
being done on the Project under the Declaration that would directly affect his Property pending
final disposition of this appeal. After argument was heard by a single-judge on December 15,
2017, by telephone conference, this Court denied the Petition because it had not first been filed
with the trial court as required by Rule 1732(a) of the Pennsylvania Rules of Appellate Procedure,
Pa.R.A.P. 1732(a). In Re: Condemnation by the Commonwealth of Pa., Dep’t of Transp., of Right-
Of-Way for State Route 0022, Section 034, in the Twp. of Frankstown (Pa. Cmwlth., No. 763 C.D.
2017, filed Dec. 19, 2017), slip op. at 5. However, we directed that argument on and disposition
of Condemnee’s appeal would be expedited.

8
11, 2017. He also asserts, citing Section 406(e) of the Eminent Domain Code of
1964, formerly 26 P.S. § 1-406(e)10 (providing that where issues of fact are raised in
preliminary objections, the trial court is required to “take evidence by depositions or
otherwise”), that an evidentiary hearing was required to be held first because issues
of fact were raised. The Department responds that Florek and Werts are
distinguishable because, unlike in those cases, Condemnee did receive an
evidentiary hearing prior to the trial court overruling his POs.
We have carefully reviewed the record and precedent cited by Condemnee,
and discern no error in the trial court’s actions. In Florek and Werts, the
condemnees’ preliminary objections were dismissed because they had not filed
briefs in violation of local rules and they were never afforded an evidentiary hearing
prior to the dismissal of their objections. Here, however, while the trial court initially
heard oral argument, it held the evidentiary hearing on the merits of the POs based
on the existence of issues of fact. At that evidentiary hearing, both Condemnee and
the Department presented evidence to support their positions. Only after that
evidentiary hearing did the trial court dismiss Condemnee’s POs based on the
evidence and argument presented by the Department and Condemnee, not because
Condemnee violated a local procedural rule. Thus, Florek and Werts are
distinguishable.

B. Whether the Commonwealth has the legal authority to condemn
Condemnee’s property.
Condemnee reasserts the arguments he made before the trial court, namely
“that the original land warrant and subsequent patent given to Andrew Lowery[]

10
Section 406(e) of the Eminent Domain Code of 1964, along with the remainder of that
statute, was repealed by Section 5(2) of the Act of May 4, 2006, P.L. 112. The entire Eminent
Domain Code of 1964 was replaced by the current Code. The same requirement is now found at
Section 306(f)(2) of the Code, 26 Pa. C.S. § 306(f)(2).

9
[renders] the [P]roperty not subject to eminent domain[.]” (Condemnee’s Br. at 15.)
Arguing that a patent is the highest evidence of title and provides full legal title in
its holder, Condemnee asserts that the Commonwealth lacks the authority to file the
Declaration or take any property from him because it has not proven some
connection to or ownership of the Property at the time it became a state. Absent the
reservation of some rights by the colony of Pennsylvania in the original patent,
Condemnee argues the Commonwealth has not retained any reversionary interest or
other right to exercise control over the Property after 1783, when the patent/warranty
deed became final. Therefore, he maintains, the Commonwealth has no privity to
the title of the Property and the assertion of such an interest would be barred by the
doctrine of laches. Condemnee maintains that the United States Supreme Court, in
Summa Corporation v. California ex rel. State Lands Commission, 466 U.S. 198
(1984), and United States v. Coronado Beach Company, 255 U.S. 472 (1921),
addressed the validity of land patents versus claims made by the government and
held that the government’s claims in those matters had to have been asserted in the
original patent proceedings or were barred. Condemnee asserts that the same
principles should be applied in this matter and, if so applied, the result would be a
determination that the Commonwealth lacks legal authority to condemn any part of
Condemnee’s Property.
The Department replies that the Commonwealth’s authority to exercise
eminent domain derives from its power as a sovereign, limited only by the
constitution and statute. According to the Department, it has been authorized by the
General Assembly to use eminent domain “for all transportation purposes” pursuant
to Section 2003(e)(1) of The Administrative Code of 1929,11 71 P.S. § 513(e)(1).

11
Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 513(e)(1).

10
While there are some limits to the exercise of eminent domain, the Department
maintains that the General Assembly has not established a limit based on whether
the land being condemned was first acquired by warrant or patent or when such
warrant or patent was issued. Moreover, the Department argues the Commonwealth
is not required to establish privity of title to condemn property for a public use,
including for transportation purposes, because that right is retained by the
Commonwealth as a sovereign and could not be conferred to a patent grantee.
(Dep’t’s Br. at 14-15 (citing e.g., Smith v. Dep’t of Revenue, 998 P.2d 675, 677 (Or.
2000) (stating that “the government cannot confer its privileges and immunities upon
patent grantees”)).) The Department asserts that, contrary to Condemnee’s
arguments, the United States Supreme Court has not held that land transferred by
patent is not subject to condemnation but has allowed such condemnation with the
payment of just compensation. (Id. at 14-17 (citing Coronado Beach Co., 255 U.S.
at 486-88; Cherokee Nation v. S. Kansas Ry. Co., 135 U.S. 641 (1890)).)
The trial court held that the Commonwealth’s authority to exercise eminent
domain in order to acquire private property for a public purpose is an incident of its
status as a sovereign and cannot be infringed upon or limited in the manner
Condemnee asserts. The trial court’s determination is amply supported by
precedent.
“[L]ong before the nineteenth century” “the Commonwealth and its
predecessor, the Colony of Pennsylvania, . . . exercise[ed] their power of Eminent
Domain[.]” Legislative Route 1018, 222 A.2d at 909 (emphasis added). In 1866,
our Supreme Court explained that the Commonwealth’s right “to take private
property without the owner’s assent on compensation made . . . exists in her
sovereign right of eminent domain . . . . The power arises out of that natural

11
principle which teaches that private convenience must yield to the public wants.”
Appeal of Lance, 55 Pa. 16, 25 (1866) (emphasis added). The Supreme Court
restated, in 1913, that the power of eminent domain “is an attribute of sovereignty,
and every private owner holds his property subject to the right of the sovereign
to take the same, or such part of it as may be required to serve the public use.” Phila.
Clay Co. v. York Clay Co., 88 A. 487, 487 (Pa. 1913) (emphasis added). “The power
is not necessarily created either by Constitution or statute, but is an inherent
attribute of sovereignty itself.” Id. at 488 (emphasis added). Even the United
States Supreme Court has stated that there can be no “doubts [as to] the existence in
the State governments of the right to eminent domain,—a right distinct from and
paramount to the right of ultimate ownership. It grows out of the necessities of their
being, not out of the tenure by which lands are held.” Kohl v. U.S., 91 U.S. 367, 371
(1875).
These pronouncements are not premised on the Commonwealth having an
existing or prior interest in the property it seeks to condemn – rather, the power of
eminent domain is inherent in the Commonwealth as a sovereign. This power, like
the power of taxation and the police power, “exist[s] because the state exists”;
“[t]hey are not rights reserved,” but “rights inherent in the state as sovereign.” In re
Condemnation of 110 Wash. St., 767 A.2d 1154, 1158 (Pa. Cmwlth. 2001) (quoting
People v. Adirondack Ry. Co., 54 N.E. 689, 692 (N.Y. 1899), aff’d sub nom.
Adirondack Ry. Co. v. New York, 176 U.S. 335 (1900)). “The state cannot surrender
the[se rights] because it cannot surrender a sovereign power. It cannot be a state
without them.” Id. Thus, the Commonwealth was not required to “reserve” its right
to eminent domain because that right is inherent to its sovereignty and a necessity to
its very being.

12
 That the Property was originally conveyed by patent is of no consequence.
The United States Supreme Court has explained that “[t]he fact that [a property
owner] holds the[] lands in fee-simple under patents from the [government] is of no
consequence” because the government “may exercise the right of eminent domain
. . . for purposes necessary to the execution of the powers granted to the general
government by the constitution,” which are “essential to the independent existence
and perpetuity of the” government. Cherokee Nation, 135 U.S. at 656. In that case,
the United States sought to condemn property for the construction of a railroad
within the Cherokee Nation, which had obtained the lands by patents and treaty.
That Court rejected an argument, similar to the one Condemnee asserts here, that the
Cherokee Nation’s lands were not subject to condemnation because they had been
conveyed to it in fee simple by a patent on the basis that the power of eminent domain
is “essential to the independent existence and perpetuity of the” government. Id.
Accordingly, the Commonwealth’s authority to exercise eminent domain to acquire
land for a public purpose is based on its inherent rights as a sovereign and the facts
that the Property was conveyed to Andrew Lowery by patent or that the
Commonwealth, or its predecessor, did not reserve an interest in the Property in that
patent do not hinder its ability to exercise that right.
However, as the Department recognizes, a sovereign may exercise the power
of eminent domain “when legislative action points out the occasions, the modes and
the agencies for its exercise[,]” and “the legislature may grant exemptions in
connection with the exercise thereof . . . .” Legislative Route 1018, 222 A.2d at 908.
Article 1, section 10 of the Pennsylvania Constitution provides, in pertinent part, that
“nor shall private property be taken or applied to public use, without authority of law
and without just compensation being first made or secured.” Pa. Const. art. I, § 10.

13
Thus, the Pennsylvania Constitution authorizes the exercise of eminent domain for
acquiring property for public use with the payment of just compensation. Section
2003(e)(1) of The Administrative Code of 1929 authorizes the Department

[t]o acquire, by . . . condemnation . . . , land in fee simple or such lesser
estate or interest as it shall determine, in the name of the
Commonwealth, for all transportation purposes . . . and to erect on the
land thus acquired such structures and facilities . . . as shall be required
for transportation purposes.

71 P.S. § 513(e)(1). Transportation purposes include “reconstructing, repairing and
maintaining State designated highways and other transportation facilities[.]” Id. We
have held that

if the purpose of the condemnation is in furtherance of [the
Department’s] responsibility to provide a fast, safe and efficient
transportation system in the Commonwealth with due regard to public
health and safety, then [the Department] has the authority and the duty
to proceed with that condemnation if it is incidental to the
reconstruction, repair or maintenance of a State designated highway.

Appeal of Corcoran, 537 A.2d 384, 385 (Pa. Cmwlth. 1988) (footnote omitted).
The condemnation here, which is to install new drainage facilities as a part of
the Project to improve the existing Route 22 interchange for safety reasons, is
authorized by these provisions. While the General Assembly has set some limits on
the Commonwealth’s ability to exercise this authority, such as prohibiting the taking
of land from cemeteries for roads, Legislative Route 1018, 222 A.2d at 908,
Condemnee points to no legislative limitation based on when a property’s warrant
or patent was issued. Absent a limitation against its use under these circumstances,
the Commonwealth has the authority to use eminent domain here.

14
 Furthermore, the cases Condemnee relies upon are distinguishable. In
Coronado Beach Company, the United States condemned certain property that had
been originally granted to the owner’s predecessor in title by the Mexican
government, whose interest was later confirmed by a federal patent issued pursuant
to the terms of the treaty ending the Mexican-American War and legislation enacted
to comply with that treaty (Act of 1851).12 Coronado Beach Co., 255 U.S. at 485-
88. However, in order to reduce the amount of compensation owed to the property
owner, the United States asserted that the State of California had a pre-existing
interest in certain tide lands claimed to be owned by the property owner. Id. at 486-
88. The Supreme Court rejected this assertion because the federal patent supported
the predecessor in title’s ownership of the tide lands and could not, subsequently, be
impeached by the assertion of California’s interest, which had not been raised during
the patent proceedings. Id. at 488. Here, the Commonwealth is not asserting any
prior ownership interest in the Property, in order to reduce the amount of just
compensation it will be required to pay Condemnee, but is exercising, as the United
States did in Coronado Beach Company, its sovereign authority of eminent domain.
In Summa Corporation, California asserted an interest, via a public trust
easement,13 in a lagoon conveyed by Mexico to the owner’s predecessor in title,
whose interest was confirmed by a Federal patent under the Act of 1851. Summa
Corp., 466 U.S. at 200, 202-03. Seeking to make improvements to the lagoon
without having to exercise eminent domain and compensate the landowners,

12
The United States Supreme Court has observed that patents issued pursuant to the Act
of 1851 are unique and provide more protection to the patent holders than other Federal patents.
Summa Corp., 466 U.S. at 205-07.
13
The public trust easement asserted by California “has been interpreted to apply to all
lands which were tidelands” when it became a state and provided California with “an overriding
power to enter upon the property and possess it, to make physical changes in the property, and to
control how the property [wa]s used.” Id. at 204-05 (citations omitted).

15
California asserted that the public trust easement existed due to the lagoon being tide
land at the time it became a state. Id. at 200. Citing Coronado Beach Company, the
United States Supreme Court held that California’s claim of an easement had to have
been “asserted in the patent proceedings or be barred.” Summa Corp., 466 U.S. at
209. Here, the Commonwealth is not seeking to assert a pre-existing servitude on
Condemnee’s Property, thereby releasing it from its obligation to pay Condemnee,
but is exercising its inherent sovereign power of eminent domain.14
For these reasons, the trial court correctly overruled Condemnee’s PO based
on the conclusion that the Commonwealth has the legal authority to issue the
Declaration and to condemn the Property.

C. Whether the exercise of eminent domain here is improper because part of
the taking at issue is intended to benefit a private enterprise and is
excessive.
Condemnee next argues the trial court erred in overruling his PO, asserting
that the taking here is unconstitutional and violates Section 204(a) of the Property
Rights Protection Act, 26 Pa. C.S. § 204(a),15 because the Project involves the taking
of land for a private enterprise. According to Condemnee, because the Project’s plot
plans reference the Township’s future intent to vacate Flowing Spring Road, a public

14
A careful review of the other cases cited by Condemnee reveals that they are similarly
inapplicable and unpersuasive. Those cases do not involve the exercise of eminent domain, but
the assertion of claims by private individuals or entities against patents issued to another private
individual or entity.
15
Section 204(a) of the Property Rights Protection Act prohibits “the exercise by any
condemnor of the power of eminent domain to take private property in order to use it for private
enterprise[.]” 26 Pa. C.S. § 204(a). A taking via condemnation “will be seen as having a public
purpose only where the public is to be the primary and paramount beneficiary of its exercise. . . .
In considering whether a primary public purpose was properly invoked, this Court has looked for
the ‘real or fundamental purpose’ behind a taking.” Middletown Twp. v. Lands of Stone, 939 A.2d
331, 337 (Pa. 2007) (citations omitted). “Stated otherwise, the true purpose must primarily benefit
the public.” Id. (emphasis omitted).

16
road, and transfer the right-of-way to Rails to Trails, a private entity, for a
recreational trail, the taking is for the benefit of a private enterprise. Condemnee
argues it is well-settled “that once a road loses its public character as a road, the
adjoining landowners take possession to the center of the road.” (Condemnee’s Br.
at 31 (citing Ferko v. Spisak, 541 A.2d 327 (Pa. Super. 1988)).) Thus, Condemnee
contends, the plan to transfer the right-of-way to Rails to Trails after the vacation of
Flowing Spring Road not only is a taking of Condemnee’s interest to the center of
that vacated road for the benefit of a private interest but also impairs his ingress and
egress to the lower 1.11 acres of the Property. Alternatively, Condemnee argues that
the condemnation for a drainage easement to allow the Department to replace the
15-inch drain pipe with an 18-inch drain pipe is excessive because the 15-inch pipe
is sufficient to handle the current drainage.
The Department responds that Condemnee’s arguments related to Flowing
Spring Road are beyond the scope of its condemnation and, therefore, are collateral
issues which cannot be raised via preliminary objections under the Code. It further
argues that the taking of the drainage easement and the construction easement were
for transportation purposes, a recognized public purpose, because the easements
were necessary to improve drainage as a part of the overall safety improvements to
Route 22. The Department points to the credited testimony of its expert, Engineer,
regarding the need for the change in location and/or size of drain pipes to remedy
safety and environmental issues associated with the current drainage facilities as part
of the Project. Based on this evidence, which was not refuted by Condemnee, the
Department asserts the trial court correctly held that the drainage facilities were a
necessary part of the Project, the purpose of which was to improve the safety of the
highway.

17
 Section 306(a) of the Code authorizes the filing of “preliminary objections to
the declaration of taking.” 26 Pa. C.S. § 306(a) (emphasis added). These
preliminary objections are limited to challenges to: (i) the power of the condemnor
to take the condemned property; “(ii) [t]he sufficiency of the security[;] (iii) [t]he
declaration of taking[; and] (iv) [a]ny other procedure followed by the condemnor.”
26 Pa. C.S. § 306(a)(3)(i)-(iv). The filing of preliminary objections “‘are intended
. . . to resolve expeditiously all legal and factual challenges to the declaration of
taking before the parties move to the second distinct proceeding of qualifying
damages.’” In re Condemnation of Dep’t of Transp., of Right of Way for State Route
79, Section W10, a Ltd. Access Highway, in the Twp. of Cecil, 798 A.2d 725, 731
(Pa. 2002) (emphasis added) (quoting W. Whiteland Assocs. v. Dep’t of Transp., 690
A.2d 1266, 1268 (Pa. Cmwlth. 1997)). Thus, the scope of preliminary objections in
eminent domain proceedings is limited. Appeal of Gaster, 556 A.2d 473, 478 (Pa.
Cmwlth. 1989). Objections that do not fall within those described above are not
proper subjects for preliminary objections to a taking, but are collateral in nature and
will not be considered. In re Condemnation of Prop. Situate in Perry Twp., 938
A.2d 517, 521 (Pa. Cmwlth. 2007). Collateral matters include challenges to the
procedure in which a municipality adopts an ordinance or resolution authorizing a
condemnation or an assertion that the taking does not comply with a statute or
regulations. Id. at 520-21.
The trial court concluded that Condemnee’s objections to the Department’s
Declaration, based on the Township’s future plans to vacate Flowing Spring Road
and transfer the right-of-way to Rails to Trails were not proper preliminary
objections here because they involve issues that are collateral to this Declaration.
(Trial Ct. Op. at 14.) A review of the record confirms the trial court’s conclusion.

18
The Declaration attaches drawings authorizing the Department’s acquisition of a
right-of-way and “[a] Schedule of Property Condemned” (Schedule), which
identifies Condemnee’s Property as being condemned by the Department to obtain
“a drainage easement and a temporary construction easement” for transportation
purposes. (R.R. at 4-5.) The Schedule references the parcel number for
Condemnee’s Property and sheet #92 of the Project Plan, which indicates where the
1,150 square foot drainage easement and 2,896 square foot temporary construction
easement will be. (Id. at 7, 57.) There is no mention in the Declaration of the
Township’s vacation of Flowing Spring Road or the transfer of any right-of-way to
Rails to Trails. Thus, Condemnee’s challenge based on the Township’s future
intent to vacate Flowing Spring Road and transfer of the right-of-way to Rails to
Trails is collateral to the Department’s Declaration and is not a proper subject of
preliminary objection in this eminent domain proceeding.16

16
This does not mean that if the Township decides to vacate Flowing Spring Road and
transfer the right-of-way to Rails to Trails its decision will escape review. In deciding whether to
vacate a road, a second class township must comply with the requirements of Section 2305 of The
Second Class Township Code, added by Section 1 of the Act of November 9, 1995, P.L. 350, as
amended, 53 P.S. § 67305. In relevant part, this Section requires the following:

(a) Before the passage of any ordinance for . . . vacating of any road or highway or
section thereof, the board of supervisors shall give ten days’ written notice to
the owners of property adjacent to the road or portions thereof involved of the
time and place set for a hearing on the proposed ordinance.

(b) If the board of supervisors votes in favor of exercising the power, it shall enact
the necessary ordinance and file a copy of the ordinance, together with a draft
or survey of the road showing the location and width thereof, in the office of
the clerk of the court of common pleas.

(c) Any resident or property owner affected by the ordinance may within thirty
days after the enactment of the ordinance of the board of supervisors, upon
entering in the court sufficient surety to indemnify the board of supervisors for

19
 The only assertion by Condemnee that relates to the Department’s Declaration
is his argument that the existing 15-inch drain pipe is sufficient to handle the current
drainage situation and, therefore, the drainage easement to install the new 18-inch
pipe on the Property is excessive. It is well settled that a taking must not be excessive
for the actual purpose of the public use. Middletown Twp. v. Lands of Stone, 939
A.2d 331, 338 (Pa. 2007). “[I]nasmuch as property cannot constitutionally [be]
taken by eminent domain except for public use, no more property may be taken than
the public use requires-a rule which applies both to the amount of property and the
estate or interest to be acquired.” In Re: Condemnation by the Beaver Falls Mun.
Auth. for Penndale Water Line Extension v. Beaver Falls Mun. Auth., 960 A.2d 933,
937 (Pa. Cmwlth. 2008) (emphasis and citation omitted). “The quantum of land to
be acquired is, within reasonable limitations, a matter within the condemnor’s
discretion.” Appeal of Waite, 641 A.2d 25, 28 (Pa. Cmwlth. 1994) (citing Truitt v.
Borough of Ambridge Water Auth., 133 A.2d 797 (Pa. 1957)).
Here, Engineer testified that the Project is intended to improve the safety
along the Route 22 corridor, which includes “improving . . . drainage along the

all costs incurred in the proceedings, file exceptions to the ordinance together
with a petition for a review. Upon receipt of the exception and surety, the court
of common pleas shall appoint viewers from the county board of viewers for
the purpose of reviewing the ordinance and exceptions thereto.

(d) After the expiration of the term allowed for filing exceptions or upon the order
of the court upon disposition of any exceptions, the court of common pleas, on
application by petition by the board of supervisors or any person interested,
shall appoint three viewers from the county board of viewers to assess the
damages and benefits occasioned by the proceeding unless the damages and
benefits are otherwise agreed upon.

Id. In addition, Section 502(c)(1) of the Code authorizes the filing of a petition for the appointment
of viewers by “[a]n owner of a property interest who asserts that the owner’s property interest has
been condemned without the filing of a declaration of taking . . . .” 26 Pa. C.S. § 502(c)(1).

20
[Route] 22 corridor.” (R.R. at 119.) Engineer provided numerous reasons why it is
necessary to change the location and size of the existing drain pipes. First, he
explained that numerous safety reasons existed for moving the 15-inch pipe from its
present location, stating the inlet of that pipe is just a hole that sits right off Route
22 into which vehicles, pedestrians, or bicyclists could fall into if they go off the
road. (Id. at 130-31.) Second, Engineer observed that the existing pipe inlet end is
“not very efficient from a hydraulic standpoint” and indicated the Department must
change the pipe’s location and construct a “rip-rap apron” to improve erosion
protection at the outlet end of the pipe. (Id. at 131-32, 136-37, 139.) Third, in
response to a question about replacing the 15-inch pipe with an 18-inch pipe,
Engineer explained that while there was not “a drainage issue per say [sic] with the
capacity of the pipe[,]” the Department’s policy is that when it is installing a pipe
that it is going to maintain, it does not “go below 18 inches . . . because anything
below 18 inches [is] . . . susceptible to blocking.” (Id. at 134-35.) He stated that
because “the inlet and outlet ends of the pipe were clearly substandard[,]” the
Department had to move the pipe and was replacing it with the 18-inch pipe in
accordance with its policy. (Id. at 135.) Similarly, Engineer explained that it was
necessary to replace the existing 24-inch drain pipe with the new 42-inch drain pipe
for a variety of environmental reasons, including to address water quality issues,
decrease the velocity of water entering into the stream beneath the pipe, and to
decrease sediment erosion into that stream. (Id. at 127-28, 131-32.) Engineer
opined, based on his years of experience constructing and maintaining these
facilities, the topography involved in the Project, and the environmental and permit
restrictions with which the Department must comply, that the Department was taking
only the minimum amount necessary for the drainage easement and temporary

21
construction easement. (Id. at 134.) The trial court credited Engineer’s testimony.
(Trial Ct. Op. at 17.)
As stated above, the purpose of this condemnation is to improve the safety
along the Route 22 corridor by, inter alia, improving the drainage along that
corridor, which qualifies it as a transportation purpose, i.e., a public purpose, under
Section 2003(e)(1) of The Administrative Code of 1929, 71 P.S. § 513(e)(1). The
credited safety, drainage, and maintenance reasons identified by Engineer for
moving the existing 15-inch pipe and replacing it with an 18-inch pipe, and for
replacing the 24-inch pipe with the 42-inch pipe, along with his credited expert
opinion that the drainage easement and temporary construction easement being
condemned were the minimum necessary, support the trial court’s conclusion that
the condemnation here was for a public purpose and not an excessive taking. Thus,
the trial court correctly overruled this PO.

D. Whether the condemnation is improper because it violates the Storm Water
Act.
Condemnee last asserts the trial court erred in finding that the condemnation
here will not violate the Storm Water Act. Condemnee argues that the Storm Water
Act and accompanying regulations place the responsibility for, inter alia,
maintaining storm water facilities and storm water management on those engaged in
the alteration or development of the earth disturbance activity. He contends that
these provisions are violated here because, although the Department is constructing
the drainage pipes, the responsibility of maintaining those pipes is being transferred
to Rails to Trails. The Department argues, in response, that this objection involves
an issue collateral to the Declaration and, therefore, is not properly raised as a
preliminary objection under the Code.

22
 The trial court overruled this PO because, inter alia, it is collateral to the
Declaration and, therefore, not properly raised as a preliminary objection to the
taking. A challenge to a declaration of taking based on a taking’s alleged violation
of other statutes or regulations is collateral and not the proper subject of a
preliminary objection in eminent domain proceedings. See, e.g., Perry Twp., 938
A.2d at 519, 521 (claimed violation of the notice and publishing requirements for an
ordinance under Section 1601 of The Second Class Township Code, 53 P.S.
§ 66601); Gaster, 556 A.2d at 475, 478 (taking alleged to violate state constitution
and statutes and federal environmental statute and regulations); In re Legislative
Route 58018, 375 A.2d 1364, 1367-68 (Pa. Cmwlth. 1977) (taking alleged to violate
the environmental rights provision of the state constitution). Accordingly, the trial
court correctly concluded that Condemnee’s PO averring that the Declaration
violates the Storm Water Act is a collateral issue not properly raised as a preliminary
objection under the Eminent Domain Code.

IV. Conclusion
Because the Commonwealth has the sovereign authority to condemn private
property for a public purpose, which includes the Department’s power to condemn
private property for transportation purposes, 71 P.S. § 513(e), and the taking
identified in the Declaration is for a public purpose and is not excessive, the trial
court correctly overruled those POs. Moreover, the trial court also correctly
overruled those POs that involved objections that were collateral to this Declaration
and, therefore, not the proper subjects of preliminary objections under the Code.
Accordingly, the trial court’s February 8, 2017 Order is affirmed.

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_____________________________________
RENÉE COHN JUBELIRER, Judge

24
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Condemnation by the :
Commonwealth of Pennsylvania, :
Department of Transportation, of :
Right-Of-Way for State Route 0022, :
Section 034, in the Township of :
Frankstown :
:
Stewart M. Merritts, Jr., :
Appellant :
:
v. : No. 763 C.D. 2017
:
Commonwealth of Pennsylvania, :
Department of Transportation :

ORDER

NOW, February 26, 2018, the February 8, 2017 Order of the Court of
Common Pleas of Blair County, entered in the above-captioned matter, is
AFFIRMED.

_____________________________________
RENÉE COHN JUBELIRER, Judge