IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Taking in Eminent Domain :
of Certain Parcel of Real Estate :
located at 401-403 East Fourth :
Street and 405 East Fourth Street, :
in the City of Bethlehem, :
Northampton County, Pennsylvania :
by the Redevelopment Authority of :
the City of Bethlehem, Pennsylvania :
: No. 1313 C.D. 2021
Appeal of: Kalavathi Shunmugam : Submitted: July 22, 2022
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: October 20, 2022
Kalavathi Shunmugam (Appellant) appeals from the Northampton
County Common Pleas Court’s (trial court) October 27, 2021 orders denying
Appellant’s Motion to Strike (Motion to Strike) the Redevelopment Authority of the
City of Bethlehem’s (Appellee) Petition to Pay Estimated Compensation (Petition)
and Writ of Possession (Writ), and granting Appellee’s Petition and Writ. Appellant
presents one issue for this Court’s review: whether the trial court erred by denying
Appellant’s Motion to Strike. After review, this Court affirms.
Background
Appellant is the record owner of property located at 401-403 East
Fourth Street and 405 East Fourth Street in Bethlehem, Northampton County,
Pennsylvania (Property). On June 16, 2021, pursuant to Section 302 of the Eminent
Domain Code,1 Appellee filed a Declaration of Taking concerning the blighted
Property.2 Also on June 16, 2021, Appellee filed the memorandum of the book and
page number in which the notice is recorded, as required by Section 304(b)(4) of the
Eminent Domain Code.3 On September 13, 2021, Appellee filed an Affidavit of
Service on Appellant, pursuant to Section 305 of the Eminent Domain Code.4
On August 5, 2021, Appellant’s counsel5 sent Appellee’s counsel a
letter, apparently memorializing a preliminary settlement agreement between the
parties, wherein he stated that Appellant would not file preliminary objections to the
Declaration of Taking if a settlement could be reached (Letter Agreement). See
Reproduced Record (R.R.) at 9b-10b.6 On August 7, 2021, Appellee’s counsel
responded to the Letter Agreement with a revision stating that the required
documents package was due within 45 days.7 See R.R. at 14b. On September 22,
2021, Appellee’s counsel notified Appellant’s counsel that the documents package
failed to meet the Letter Agreement’s requirements. See R.R. at 16b.
On September 28, 2021, Appellee filed the Petition and Writ, and
requested the matter be placed on the trial court’s miscellaneous hearing list for
1
26 Pa.C.S. § 302.
2
Appellee proceeded under Section 205 of the Eminent Domain Code, 26 Pa.C.S. § 205
(relating to blighted properties).
3
26 Pa.C.S. § 304(b)(4).
4
26 Pa.C.S. § 305.
5
Appellant has new counsel and is no longer represented by the attorney who drafted the
August 5, 2021 letter.
6
Pennsylvania Rule of Appellate Procedure 2173 requires a reproduced record to “be
numbered . . . in Arabic figures . . . followed in the reproduced record by a small a . . . .” Pa.R.A.P.
2173. Appellant included the small a in numbering the first 3 pages of her Reproduced Record,
but included a small b in numbering the next 17 pages, a small c in numbering the next 16 pages,
and a small d in numbering the last 3 pages. Thus, for consistency, references to specific
Reproduced Record pages herein shall be as labeled by Appellant.
7
In the response cover letter, Appellee’s counsel stated that he “assume[d] the omission
was an oversight.” R.R. at 12b. Thus, Appellee’s counsel indicated that the parties previously
agreed upon the revision.
2
October 27, 2021. On October 27, 2021, Appellant filed the Motion to Strike. The
trial court held the hearing on October 27, 2021, after which it denied the Motion to
Strike and granted the Petition and Writ. On November 24, 2021, Appellant
appealed to this Court.8 On that same date, Appellant filed a Statement of Errors
Complained of on Appeal pursuant to Pennsylvania Rule of Appellate Procedure
(Rule) 1925(b) (Rule 1925(b) Statement).9 On December 3, 2021, the trial court
filed its opinion pursuant to Rule 1925(a) (Rule 1925(a) Opinion).
Before setting forth its reasoning in its Rule 1925(a) Opinion, the trial
court raised two waiver issues: (1) the Rule 1925(b) Statement asserted that the trial
court erred in denying the Motion to Strike and granting the Petition and Writ, but
did not specify the error; and (2) Appellant did not file preliminary objections to the
Declaration of Taking. Notwithstanding its determination that Appellant waived her
only issue on appeal, the trial court addressed the merits of Appellant’s claim of
error.
Discussion
Waiver
Preliminarily, concerning the vagueness of Appellant’s Rule 1925(b)
Statement, the Pennsylvania Supreme Court has recently explained:
[I]t bears noting that the purpose of Rule 1925 is to
facilitate appellate review and to provide the parties and
the public with the legal basis for a judicial decision. See
8
In an appeal from an eminent domain proceeding, this Court reviews the trial court’s
record to “determine whether the lower court abused its discretion or committed an error of law or
whether the findings of fact were supported by substantial evidence.” Szabo v. Dep’t of Transp.,
202 A.3d 52, 58 (Pa. 2019).
9
Appellant specified only one issue in her Rule 1925(b) Statement: “The trial court erred
in denying Appellant’s Motion to Strike . . . made by Appellant in response to the Petition[ and
Writ] filed by [] Appellee and therefore also erred in considering and granting [] Appellee’s
Petition [and Writ].” Appellant’s Rule 1925(b) Statement.
3
Commonwealth v. Parrish, . . . 224 A.3d 682, 692 ([Pa.]
2020) (quoting Commonwealth v. DeJesus, . . . 868 A.2d
379, 382 ([Pa.] 2005)). If that basis is evident from the
record, the trial court need not issue an opinion explaining
it. See Pa.R.A.P. 1925(a) (requiring an opinion only
where “the reasons for the order [appealed from] do not
already appear of record”). The function of the concise
statement is to clarify for the judge who issued the order
the grounds on which the aggrieved party seeks appellate
review - so as to facilitate the writing of the opinion. See
Pa.R.A.P. 1925(b) (“If the judge entering the order
giving rise to the notice of appeal . . . desires
clarification of the errors complained of on appeal, the
judge may enter an order directing the appellant to file
of record . . . a concise statement of the errors
complained of on appeal[.]”).
In Commonwealth v. Laboy, . . . 936 A.2d 1058 ([Pa.]
2007) (per curiam), this Court faced a situation
comparable to the present controversy. The defendant’s
Rule 1925(b) [S]tatement was exceedingly brief in setting
forth an evidentiary-sufficiency claim. Nevertheless, the
common pleas court issued a Rule 1925(a) [O]pinion
resolving the claim on its merits. The Superior Court
found the claim waived due to its brevity and did not
address its merits. [Our Supreme] Court held that the
Superior Court should have afforded the requested
sufficiency review, as the trial transcript was short, it was
fairly evident from context that the sole legal issue was
whether the defendant was vicariously liable for his co-
defendant’s actions, and “the common pleas court readily
apprehended [the a]ppellant’s claim and addressed it in
substantial detail.” Id. at . . . 1060.
Commonwealth v. Rogers, 250 A.3d 1209, 1224 (Pa. 2021) (emphasis added). The
Rogers Court concluded: “[T]he brevity of [the a]ppellant’s . . . claim as set forth in
his concise statement represent[ed] a good-faith attempt to comply with Rule
1925[(b)]’s concision requirement, and that it did not prevent meaningful appellate
review.” Id. at 1225.
Here, the trial court did not order Appellant to file a Rule 1925(b)
Statement. Rather, Appellant filed it contemporaneously with her Notice of Appeal.
4
Further, the trial court transcript was short and it was fairly evident from its context
that the sole legal issue was whether the trial court should have denied the Motion
to Strike in light of the Letter Agreement. Moreover, the trial court was able to, and
did address, Appellant’s claim. Accordingly, Appellant did not waive her appellate
issue by failing to specify the trial court’s error in her Rule 1925(b) Statement.
Relative to Appellant’s failure to file preliminary objections, Section
306 of the Eminent Domain Code provides, in relevant part:
(a) Filing and exclusive method of challenging certain
matters.--
(1) Within 30 days after being served with notice
of condemnation, the condemnee may file
preliminary objections to the declaration of taking.
(2) The court upon cause shown may extend the
time for filing preliminary objections.
(3) Preliminary objections shall be limited to and
shall be the exclusive method of challenging:
(i) The power or right of the condemnor to
appropriate the condemned property unless it
has been previously adjudicated.
(ii) The sufficiency of the security.
(iii) The declaration of taking.
(iv) Any other procedure followed by the
condemnor.
(b) Waiver.--Failure to raise by preliminary objections the
issues listed in subsection (a) shall constitute a waiver.
Issues of compensation may not be raised by preliminary
objections.
26 Pa.C.S. § 306. Here, Appellant is not challenging any of the matters listed in
Section 306(a) of the Eminent Domain Code. Rather, Appellant argues that the
Motion to Strike should have been granted in light of the Letter Agreement.
5
Accordingly, Appellant did not waive her appellate issue by failing to file
preliminary objections.
Merits
Appellant argues on appeal to this Court that the trial court erred as a
matter of law by denying Appellant’s Motion to Strike where Appellee agreed to
enter into negotiations with Appellant toward a final and binding settlement
agreement, and Appellee filed its Petition and Writ rather than enter into the agreed-
upon negotiations. Appellee rejoins that although Appellee’s counsel, at the request
of Appellant’s first attorney, agreed to give Appellant one last chance to provide a
detailed proposal to eliminate the Property’s blight, Appellant’s forthcoming
proposal did not meet the Letter Agreement’s requirements. Appellee maintains that
the Letter Agreement was not an agreement to negotiate anything but, rather, was
dictated solely by Appellee, as the sole judge of the content, quality, sincerity, and
acceptability of Appellant’s proposal.
Initially, in the Motion to Strike, Appellant averred, in relevant part:
8. Based on the understanding that the parties would
negotiate a final settlement agreement within
approximately 45 days, [Appellant] began assembling
the estimates and documents she believed necessary to
enter into a final settlement agreement.
9. As a show of good faith, prior to completing a final
settlement agreement, [Appellant] provided the
documents to [Appellee] to show that [Appellant] was
making progress on the steps that [she] was anticipated
would be required in any final settlement agreement.
10. The documents provided by [Appellant] include[d] an
engineering report, estimate to make the repairs, and proof
that the needed funds had been set aside is [sic] a separate
account by [Appellant].
6
11. The letters between the parties clearly indicate that
these documents were anticipated to be required by the
final agreement not part of the preliminary settlement
agreement.
12. Upon receipt of the documents, even though they
were not yet required because no final settlement
agreement had been reached, [Appellee] declared the
documents insufficient, filed the [Petition and Writ],
refused to continue to negotiate with [Appellant], and
ordered its agents and employees not to talk to
[Appellant]. . . .
R.R. at 1b-2b (emphasis added). However, a review of the relevant documents belies
Appellant’s claims in her Motion to Strike.
The Letter Agreement provided:
PRELIMINARY SETTLEMENT AGREEMENT
1) [Appellant] will waive all preliminary objections that
she has against the Declaration of Taking docketed at C-
48-CV-2021-04285 in [the trial court].
2) [Appellant] agrees to waive any increase in value in the
[P]roperty if she defaults on the Final and Binding
Settlement Agreement, and hereby agrees that the
valuation of the Property will not include any increase in
value due to the efforts of [Appellant] from the time of
Condemnation to the perfection of the [Appellee’s] title in
the Property. Valuation of the Property shall be as of
[June ] 16[,] 2021.
3) The parties anticipate entering into a Final and Binding
Settlement Agreement within approximately 45 days.
4) [Appellee] and [Appellant] agree to enter into a
[F]inal and [B]inding [S]ettlement Agreement upon the
following material terms:
a. [Appellant] provides proof of funds for the
completion of the Project (as later defined)[.]
b. [Appellant] deposits said funds into an
escrow account for the completion of the Project,
before any work proceeds.
7
c. [Appellant] and/or her general contractor
obtain a Bond for the Project.
d. The Project will be completed in a proposed
reasonable time period approved by the
[Appellee].
e. The Project will be defined as all items of repair
necessary to bring the Property into a code-
compliant status with the City of Bethlehem
regardless of [sic] said code items are for the
purposes of blight or the purposes of a Certificate
of Occupancy.
f. [Appellee] will not relinquish the Taking or the
Blight Certification until a Certificate of
Occupancy is granted by the City of Bethlehem, in
[its] sole and absolute discretion, in accordance
with applicable municipal laws.
g. [Appellant] will have one or more reputable
appraisers of her choice view, evaluate and take
pictures of the [P]roperty on or before one month
from the date of this letter so that they can issue an
appraisal of fair market value as of the date of [the
T]aking in the event the valuation of the [P]roperty
becomes relevant.
h. Such other terms and conditions as
[Appellee] shall deem appropriate to ensure
[Appellant] will complete the required
rehabilitation in order to obtain a [C]ertificate
of [O]ccupancy.
5) This Agreement is being entered into between and is the
recommendation of counsel, subject to the approval of
[Appellee’s] Board at a public meeting.
R.R. at 9b-10b (emphasis added).
On August 7, 2021, Appellee included the following additional
provision to paragraph 3 of the Letter Agreement:
3) The parties anticipate entering into a Final and
Binding Settlement Agreement within approximately
45 days . . . of [Appellant] submitting to [Appellee]
8
their [sic] Proposed Document Package to include but
not limited to the Construction Contract (to include
timelines), performance bond, escrow account details,
structural engineer reports and other reports requested in
the [C]ity of Bethlehem inspection notes of August 4,
2021, financial disclosures and such other reasonable
information that maybe requested. Said package to be
submitted within 45 days of the date of this letter.
R.R. at 13b-14b (emphasis added). According to Appellee’s September 22, 2021
correspondence to Appellant’s counsel, the documents package failed to satisfy the
Letter Agreement’s requirements by not including, but not limited to, Appellant’s
personal financial information and the Property’s mortgage balance. See R.R. at
16b. Further, although Appellee’s counsel requested that Appellant’s counsel call
him, there is nothing in the record indicating that Appellant’s counsel did so. See
id. Because the Letter Agreement expressly required that certain documents be
submitted within 45 days, it was up to Appellee to determine what it deemed
appropriate to ensure Appellant would complete the required rehabilitation in order
to obtain a certificate of occupancy, and because Appellant failed to submit the
required documents, the Letter Agreement was no longer binding.
The law is well settled:
Section 307(a)(1)(i) of the Eminent Domain Code provides:
The condemnor, after the expiration of the time for
filing preliminary objections by the condemnee to
the declaration of taking, shall be entitled to
possession or right of entry upon payment of or
a written offer to pay to the condemnee [of] the
amount of just compensation as estimated by
the condemnor.
26 Pa.C.S. § 307(a)(1)(i) (emphasis added). Concerning
the authority of a trial court to set aside a condemnor’s
declaration of estimated just compensation, this Court has
explained:
9
Only fraud or palpable bad faith in making the
declaration, described by clear averments of facts
in the condemnee’s pleading and thereafter proved
by clear, precise[,] and indubitable evidence will
justify the employment by the trial court of the
powers we now hold they possess to set aside the
condemnor’s declaration, to appoint an impartial
appraiser[,] and to enter judgment in favor of the
condemnee.
In re Condemnation by City of Phila. of Leasehold of
Airportels, Inc., . . . 398 A.2d 224, 229 ([Pa. Cmwlth.]
1979).
Trinidad v. Dep’t of Transp., 273 A.3d 85, 94 (Pa. Cmwlth. 2022); see also In re
Phoenixville Area Sch. Dist. (Pa. Cmwlth. No. 1659 C.D. 2014, filed May 28,
2015),10 slip op. at 8 (“[A] trial court can only refuse to issue a writ of possession if
the condemnee proves by clear and convincing evidence that the condemnor acted
with fraud or palpable bad faith in making payment of or offering estimated just
compensation.”).
Here, the trial court opined:
[Appellant’s] Motion to Strike does not allege fraud and/or
palpable bad faith on the part of [Appellee,] and the record
contains no “clear, precise[,] and indubitable” evidence
that [Appellee] acted fraudulently or in bad faith. In fact,
[Appellant] specifically declined to introduce evidence at
the October 27, 2021 hearing. At that hearing, despite
repeated inquiries by the [trial c]ourt, counsel for both
parties stated there was no need for an evidentiary hearing.
See [R.R. at 6c-7c, 11c-12c]. Thus, no evidence was
introduced at the October 27, 2021 hearing[,] and no other
“clear, precise[,] and indubitable evidence” of record
establishes fraud or palpable bad faith by [Appellee].
10
Unreported decisions of this Court issued after January 15, 2008, may be cited as
persuasive authority pursuant to Section 414(a) of this Court’s Internal Operating Procedures. 210
Pa. Code § 69.414(a).
10
Trial Ct. Rule 1925(a) Op. at 5-6. This Court discerns no error in the trial court’s
reasoning. Accordingly, the trial court properly denied the Motion to Strike, and
granted the Petition and Writ.
Conclusion
For all of the above reasons, the trial court’s orders are affirmed.
_________________________________
ANNE E. COVEY, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Taking in Eminent Domain :
of Certain Parcel of Real Estate :
located at 401-403 East Fourth :
Street and 405 East Fourth Street, :
in the City of Bethlehem, :
Northampton County, Pennsylvania :
by the Redevelopment Authority of :
the City of Bethlehem, Pennsylvania :
: No. 1313 C.D. 2021
Appeal of: Kalavathi Shunmugam :
ORDER
AND NOW, this 20th day of October, 2022, the Northampton County
Common Pleas Court’s October 27, 2021 orders are affirmed.
_________________________________
ANNE E. COVEY, Judge