IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Condemnation by the General :
Municipal Authority of the City of :
Nanticoke : No. 1426 C.D. 2021
: ARGUED: December 12, 2022
Appeal of: Clifford J. Pomicter and :
Mary Lou Pomicter :
In Re: Condemnation by the General : No. 1427 C.D. 2021
Municipal Authority of the City of :
Nanticoke :
:
Appeal of: Nilved Apartments, LLC :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY
SENIOR JUDGE LEADBETTER FILED: March 27, 2023
Clifford J. and Mary Lou Pomicter and Nilved Apartments, LLC
(collectively, Condemnees), appeal from the Court of Common Pleas of Luzerne
County’s orders which overruled their preliminary objections to amended
declarations of taking of their respective properties by the General Municipal
Authority of the City of Nanticoke. The cases were not formally consolidated by
the trial court but were heard together; the trial court entered separate but
substantively identical orders and opinions in each of the separately docketed
matters.1 For the reasons that follow, we vacate the trial court’s orders and remand
these matters for proceedings consistent with this opinion.
In August 2018, the Authority filed declarations of taking for lands
belonging to Condemnees.2 The declarations of taking stated that the purpose of the
takings was as follows:
9. The property has been condemned by the Authority
for purposes of construction of a new five (5) story mix-
use [sic] building in the City of Nanticoke, Luzerne
County, Pennsylvania, that will include the construction of
Affordable Apartments for Elderly that will be housed on
the upper three floors of the building, a Living
Independently For Elders (LIFE) Center along with an
lnter Modal transit office and a residential entry lobby that
will be located on the ground floor, and a parking garage
that will be located on the second floor.
10. The purpose of the construction of a the [sic] new
mix[-]use building is to provide affordable housing to
senior citizens in the City of Nanticoke, as well as to
provide affordable and accessible public transportation to
the elderly residents of the City of Nanticoke.
[Decl. for Pomicter Prop., ¶¶ 9-10, Reproduced R. “R.R.” at 2a; Decl. for Nilved
Prop. ¶¶ 9-10, R.R. at 15a (identical).] The declarations further stated as follows:
“[t]his condemnation is in the public interest to maintain a healthy and safe quality
of life for the City of Nanticoke’s elderly residents.” (Decl. for Pomicter Prop. ¶ 12,
R.R. at 3a; Decl. for Nilved Prop., ¶ 12, R.R. at 16a.)
1
In June 2022, this Court entered an order consolidating the above-captioned matters.
2
There is some confusion as to when the first declarations were authorized—the declarations
state May 21, 2018, but the actual authorization seems to have been voted upon at a meeting of the
Authority on July 23, 2018. (May 6, 2021 Hr’g, Ex. D-4, Reproduced Record “R.R.” at 224a.)
2
Condemnees filed preliminary objections to the declarations of taking.
Instead of responding to the preliminary objections, in October 2018 the Authority
authorized amended declarations of taking for the properties (Auth. Bd. Minutes,
R.R. at 320a) and filed amended declarations of taking in both matters. The amended
declarations elaborated on the earlier stated purpose, adding that there was also an
infrastructure and economic development purpose to the taking and stating:
11. The property has been condemned by the Authority
for purposes of construction of a new five[3] (5) story
building in the City of Nanticoke, Luzerne County,
Pennsylvania, that will include the construction of
Affordable Apartments for Elderly that will be housed on
the upper three floors of the building, a Living
Independently For Elders (LIFE) Center along with an
Inter Modal Public Transit office and a residential entry
lobby that will be located on the ground floor, and a
parking garage that will be located on the second floor.
12. The purpose of the construction of a building is to
provide public transportation and affordable housing to
senior citizens in the City of Nanticoke, and to improve the
infrastructure, streetscape, pedestrian safety, and
economic development of the City of Nanticoke[.]
[Am. Decl. for Pomicter Prop. ¶¶ 11-12, R.R. at 94a-95a (emphasis added; footnote
added); Am. Decl. for Nilved Prop., ¶¶ 11-12, R.R. at 108a-09a (identical).] The
amended declarations stated, with greater specificity, that “[t]his condemnation is in
the public interest to maintain a healthy and safe quality of life for the City of
Nanticoke’s elderly residents and to improve the infrastructure, streetscape,
pedestrian safety, and economic development of the City of Nanticoke.” [Am. Decl.
for Pomicter Prop., ¶ 14, R.R. at 95a (emphasis added); Am. Decl. for Nilved Prop.,
3
In Paragraph 11 of the amended declarations, the words “mix-use” were not used at this
point, as they were in the corresponding Paragraph 9 in the original declarations of taking.
3
¶ 14, R.R. at 109a.] The record indicates that the proposed multi-use building is
referred to as the “Nantego Project” and the improvements to the street are referred
to as the “Streetscape Project,” to be overseen by the Pennsylvania Department of
Transportation (PennDOT).
Upon the Authority’s filing of the amended declarations, the trial court
sua sponte issued orders dismissing Condemnees’ initial preliminary objections as
moot. Condemnees then filed preliminary objections to the amended declarations
of taking, to which the Authority filed responses.
After considerable delay caused by discovery disputes and the COVID-
19 pandemic, a hearing on the merits was held on May 6, 2021, before the Honorable
Thomas F. Burke, Jr. Condemnees presented the testimony of Mary Lou Pomicter,
who with her husband owns one of the properties taken, and Debra Massaker, owner
of Nilved Apartments; Stephen R. Sartori, Transportation Division Manager and
Associate Vice-President of Pennoni Associates, Inc., an engineering firm, who was
engaged by PennDOT to oversee a street widening as part of the Streetscape Project,
a large project to improve and beautify downtown Nanticoke; and John Nadolny,
Chairman of the Authority. The Authority presented the testimony of Martin Fotta,
Vice-President of Community Development of a non-profit entity called United
Neighborhood Community Development Corporation, a social service agency
involved with the Nantego Project, and Mr. Nadolny.
After the hearing, the parties submitted proposed findings of fact and
conclusions of law. In December 2021, the Authority contacted the trial court
concerning Judge Burke’s impending retirement at the end of the year, inquiring
when a decision would be issued (the trial court apparently did not docket the letter,
which is therefore not part of the record). On December 7, 2021, the trial court
4
issued orders overruling the preliminary objections to the amended declarations.
Condemnees filed timely notices of appeal and the trial court, by Judge Burke, issued
orders under Pennsylvania Rule of Appellate Procedure 1925(b) directing
Condemnees to file concise statements of errors complained of on appeal.
At the end of 2021, Judge Burke retired from the bench. On January 6,
2022, Condemnees filed their Rule 1925(b) statements to which the Authority filed
responses. On March 3, 2022, a judge newly assigned to the case, the Honorable
Tina Polachek Gartley, issued orders and opinions under Rule of Appellate
Procedure 1925(a). Of note, Judge Polachek Gartley indicated that her decisions
were based upon, inter alia, “Judge Burke’s notes in the file” as well as review of
the record and transcript. (Pomicter Op. at 2; Nilved Op. at 2.) Judge Burke’s file
notes are extraneous to the record and their contents are not indicated in the body of
the opinions. With regard to the key issue of whether the purpose stated in the
amended declarations was the actual purpose of the takings, the trial court made no
discrete findings of fact or conclusions of law. Rather, the trial court relied generally
upon the presumption of good faith and the heavy burden to show bad faith or abuse
of discretion as well as the testimony of Mr. Fotta (May 6, 2021 Hr’g, Notes of Test.
“N.T.” at 88-115, R.R. at 212a-18a) in concluding that the Authority’s use of
eminent domain was permissible under Sections 5607(d)(15) and 5615(a) of the
Municipality Authorities Act (MAA), 53 Pa.C.S. §§ 5607(d)(15) and 5615(a), and
was for a purpose consistent with Section 5607(a)(2) and (3) of the MAA, 53 Pa.C.S.
§ 5607(a)(2)-(3). With regard to another key issue, whether the takings violated
Section 204(a) the Property Rights Protection Act (PRPA), 25 Pa.C.S. § 204(a), the
trial court again relied upon the presumption of propriety and the testimony of Mr.
Fotta without making findings of fact or conclusions of law.
5
On appeal, Condemnees style their questions presented as a single
issue: whether the trial court erred and abused its discretion when it overruled the
preliminary objections to the amended declarations of taking. However, the body of
the brief reveals that Condemnees actually raise several arguments,4 which we have
reordered for organizational purposes and paraphrased slightly for clarity:
(1) Whether the MAA is unconstitutional because it
permits takings which are only partially for public uses;
(2) Whether the Authority improperly filed amended
declarations without leave of the trial court or consent
of Condemnees;
(3) Whether the takings are validly authorized by
ordinance, resolution, or otherwise under Section
302(b) of the Eminent Domain Code, 26 Pa.C.S. §
302(b);
(4) Whether the Authority sufficiently identified the
Pomicter property;
(5) Whether the MAA grants the Authority power to
condemn for either its stated purpose or what
Condemnees contend is the Authority’s “true purpose”;
(6) Whether the takings are for a valid public purpose;
(7) Whether the takings are excessive; and
(8) Whether the takings violate Section 204(a) of the
PRPA, 26 Pa.C.S. § 204(a), because they take private
property to use for private enterprise.
Condemnees ask the Court to reverse the trial court’s orders overruling their
preliminary objections to the amended declarations and remand. Condemnees also
4
Condemnees note that they objected to the Authority’s service of the original and amended
declarations to Nilved but acknowledge that the improper service was non-prejudicial and
therefore abandon the issue. (Condemnees Br. at 52.)
6
ask the Court to direct the trial court upon remand to revest title to them under 26
Pa.C.S. § 306(f)(1), award costs and expenses pursuant to 26 Pa.C.S. § 306(g), and
grant just compensation for the temporary taking of their properties.
We decide the first four questions raised by Condemnees as they either
present pure issues of law or can be adequately reviewed on the current record. We
do not reach the merits of the other arguments raised, as they present factual
questions which require further development by the trial court.
I. Section 5607(a)(2), (3), and (17) of the MAA Survives Condemnees’
Facial Constitutional Challenge
Condemnees mount a facial constitutional challenge to paragraphs (2),
(3), and (17) of Section 5607(a) of the MAA,5 arguing that the language in paragraph
5
Section 5607(a) provides in relevant part as follows:
(a) Scope of projects permitted.—Every authority . . . shall be for
the purposes of . . . acquiring, holding, constructing, financing,
improving, maintaining and operating, owning or leasing, either in
the capacity of lessor or lessee, projects of the following kind . . . :
....
(2) Buildings to be devoted wholly or partially for public uses,
including public school buildings, and facilities for the conduct of
judicial proceedings and for revenue-producing purposes.
(3) Transportation, marketing, shopping, terminals, bridges, tunnels,
flood control projects, highways, parkways, traffic distribution
centers, parking spaces, airports and all facilities necessary or
incident thereto.
....
(17) Industrial development projects, including, but not limited to,
projects to retain or develop existing industries and the development
(Footnote continued on next page…)
7
(2) permitting a taking “partially for public uses,” 53 Pa.C.S. § 5607(a)(2), as well
as language in paragraphs (3) and (17) permitting takings for uses which are not
exclusively designated as public or are non-public, such as transportation,
marketing, and shopping, 53 Pa.C.S. § 5607(a)(3), and industrial development, 53
Pa.C.S. § 5607(a)(17), means that the statute permits the exercise of eminent domain
for private gain. Condemnees assert that such non-public uses violate state and
federal constitutional protections stating that a property may be taken for “public
use.” U.S. Const. amend. V;6 Pa. Const. art. I, § 10.7
While both the federal and state constitutions require that property
taken must be for a “public use,” the constitutional meaning of “public use” is
broader than actual “use” by the public. Snitzer, Pennsylvania Eminent Domain §
1.2.2.1 (2023 ed.). In Kelo v. City of New London, 545 U.S. 469 (2005), the United
States Supreme Court stated that since it began applying the Fifth Amendment to the
States at the close of the 1800s, it has “embraced the broader and more natural
interpretation of public use as ‘public purpose.’” Id. at 480. The Court stated that
“[w]ithout exception, our cases have defined [public purpose] broadly, reflecting our
longstanding policy of deference to legislative judgments in this field.” Id.
of new industries, the development and administration of business
improvements and administrative services related thereto.
53 Pa.C.S. § 5607(a)(2)-(3), (17).
6
The Fifth Amendment provides, in pertinent part, as follows: “nor shall private property be
taken for public use, without just compensation.” U.S. Const. amend. V.
7
Article I, section 10 provides in relevant part as follows: “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 (relating to eminent domain).
8
The courts of this Commonwealth take a somewhat more complex
approach to the meaning of public use, rejecting legalistic formulae, instead leaving
the definition to “the varying circumstances and situations which arise, with special
reference to the social and economic background of the period in which the particular
problem presents itself for consideration.” In re Condemnation by City of
Coatesville, 822 A.2d 846, 855 (Pa. Cmwlth. 2003) [quoting Dornan v. Phila.
Housing Auth., 200 A. 834, 840 (Pa. 1938)]. “A taking is proper if the benefit to the
public is primary and any benefit to a private individual is only incidental.” In re
Condemnation of Land for the Dev. of the S.E. Cent. Bus. Dist. Redev. Area #1, 946
A.2d 1143, 1147 (Pa. Cmwlth. 2008). The question of what constitutes a public use
is highly fact-dependent. Reading Area Water Auth. v. Schuylkill River Greenway
Ass’n, 100 A.3d 572, 580 (Pa. 2014). A “taking does not lose its public character
merely because there may exist in the operation some feature of private gain, for if
the public good is enhanced it is immaterial that a private interest also may be
benefited.” In re Legis. Route 62214, Section 1-A, 229 A.2d 1, 3 (Pa.
1967) (quotation omitted).
Although subject to limitations made in the judgment of the General
Assembly which we discuss, infra, under the federal and state constitutions, the
occurrence of incidental private benefit does not categorically prohibit individual
takings which benefit the public. In light of this, we cannot find that the
constitutional protections in question provide a ground for a facial challenge to
Section 5607(a)(2), (3), and (17) of the MAA.
II. The Trial Court Allowed the Authority to File Amended Declarations
Condemnees argue that the amended declarations were improperly filed
because the Authority obtained neither leave of court nor Condemnees’ consent and
9
because Condemnees raised issues of fact in their preliminary objections to the
original declarations and the trial court did not hold an evidentiary hearing to
determine those issues of fact. Section 306(f)(3) of the Eminent Domain Code
provides that the “[t]he [trial] court may allow amendment or direct the filing of a
more specific declaration of taking.” 26 Pa.C.S. § 306(f)(3). It does not prescribe a
specific procedure by which the trial court may “allow” the amendment of a
declaration.
While leave was not sought or received from the trial court prior to the
filing of the amended declarations, the trial court did sua sponte declare moot
Condemnees’ first round of preliminary objections and directed Condemnees to file
a response to the amended declaration, allowing the proceedings to move forward
pursuant to the amendments. Additionally, Condemnees pursued the issue at the
hearing and the trial court verbally stated that it was overruling the preliminary
objection concerning the amendment to the declaration.8 Finally, in its Rule 1925(a)
opinion, the trial court—albeit by a different judge—stated that had the Authority
8
In open court, Judge Burke explained why he was overruling this preliminary objection. He
did not address the meaning of Section 306(f)(3), but did express surprise that after approximately
31 months of litigation prefatory to the hearing, including phone conferences, counsel for
Condemnees did not “signal[] to opposing counsel and to the Court in a meaningful way” that
“would have indicated that this is a threshold issue and it [would] save a lot of time and effort with
scheduling and bringing people into court and so forth if [Condemnees were] correct on it.” (N.T.
at 15, R.R. at 193a.) The trial court stated as follows:
I simply don’t believe that it’s warranted at this stage to go backward
hypothetically unless I’m mistaken about this. If these grounds were
to be sustained, there is no preclusion against the [A]uthority refiling
all paperwork with the same project and the same condemnations
attending to the same and going through the process all over again.
(Id.)
10
sought permission to amend, it would have been granted and the trial court would
not have sustained the preliminary objection to the amendments or terminated the
condemnations such that the fee-shifting provisions of Section 306(g)9 would have
been implicated. This finding is fully supported by Judge Burke’s actions. We
conclude that the trial court did “allow” the amendment of the original declarations
despite permission to file it not first having been sought.
III. Condemnees Have not Shown that Condemnation was Not Validly
Authorized by Ordinance
Condemnees argue that the condemnations were not validly authorized
by ordinance because the minutes of the Authority’s meeting containing the
authorizations were not available for examination at the location listed in the
amended declarations (the minutes were instead publicly distributed on the Internet).
Section 302(b)(3) of the Eminent Domain Code provides that a declaration of taking
must contain “[a] specific reference to the action . . . by which the declaration of
taking was authorized, including the date when the action was taken and the place
where the record may be examined.” 26 Pa.C.S. § 302(b)(3).
Contrary to Condemnees’ assertion, the principle of strict construction
is not applied to nonprejudicial irregularities in the procedural aspects of
9
Section 306(g) provides as follows:
(1) If preliminary objections which have the effect of terminating
the condemnation are sustained, the condemnor shall reimburse
the condemnee for reasonable appraisal, attorney and
engineering fees and other costs and expenses actually incurred
because of the condemnation proceedings.
(2) The court shall assess costs and expenses under this subsection.
26 Pa.C.S. § 306(g).
11
condemnation. Avery v. Com., 276 A.2d 843, 845 (Pa. Cmwlth. 1971). Thus,
procedural irregularities will not set aside a condemnation decision where the
condemnee has not been prejudiced. In re Condemnation by Com. of Pa., Dep’t of
Transp., of Right-of-Way for State Route 0079, Section 290, A Ltd. Access Highway
in Twp. of Cranberry, 805 A.2d 59, 67 (Pa. Cmwlth. 2002). Here, no prejudice is
alleged to have occurred and so this argument must fail. See Appeal of Perry, 461
A.2d 916, 918 (Pa. Cmwlth. 1983) (where minutes of meeting authorizing taking
were referenced as attached to declaration of taking but were not so attached, the
irregularity was harmless error).
IV. Any Inadequacy in the Description of the Pomicters’ Property in the
Original Declaration of Taking was Rectified by the Amended
Declaration
Condemnees argue that the Authority failed to sufficiently identify the
Pomicters’ property as required by Section 302(b)(5) of the Eminent Domain Code,
26 Pa.C.S. § 302(b)(5), in the original declaration of taking. Section 302(b)(5)
requires that a declaration be in writing and contain:
A description of the property condemned, sufficient for
identification, specifying the municipal corporation and
the county or counties where the property taken is located,
a reference to the place of recording in the office of the
recorder of deeds of plans showing the property
condemned or a statement that plans showing the property
condemned are on the same day being lodged for record
or filed in the office of the recorder of deeds in the county
in accordance with [S]ection 304 [26 Pa.C.S. § 304]
(relating to recording notice of condemnation).
26 Pa.C.S. § 302(b)(5). Although it is not entirely clear, Condemnees seem to be
arguing that because the inadequate description resulted in attorneys’ fees and costs
to the Pomicters (resulting from the original preliminary objections) and because
12
they believe they would have won on this issue had the original round of preliminary
objections been litigated without an amended declaration against the Pomicters’
property being allowed by the trial court, they are entitled to those fees anyway.
However, the fact of the matter is that an amended declaration was filed, it was
allowed by the trial court, and the original preliminary objections were moot, in toto.
V. Remand for a Hearing De Novo and Findings of Fact and Conclusions
of Law is Necessary for Review of the Remaining Issues Raised by
Condemnees
As they implicate common factual issues for which remand is
necessary, we address together the remainder of Condemnees’ arguments
challenging the purpose(s) for which their properties were taken. While we believe
that the substitute judge did the best she could do in her Rule 1925(a) opinion, we
are impeded in our exercise of effective appellate review by the lack of specific
findings of fact and therefore remand for further proceedings.
Briefly, these arguments involve Condemnees’ allegation that the
properties were being taken not for public use, but to benefit a private developer.
They argue that the “true” purposes (which they allege to be the sale of the properties
to a developer) of the takings are outside the legislature’s grant of authority under
Section 5607(a)(2), (3), and (17) of the MAA. Further, Condemnees argue that this
“true purpose” is not a valid “public use” or “public purpose” under the Fifth
Amendment of the United States Constitution and article I, section 10 of the
13
Pennsylvania Constitution,10 either in its entirety or because it is excessive for its
purpose,11 and violates Section 204 of the PRPA.12
To be a valid taking, the public use must not only be one which satisfies
the federal and state constitutions but must also be a permitted use under legislation
delegating the authority.13 Thus, the public use for which these takings were made
must be statutorily authorized by one or more of paragraphs (2),14 (3), and/or (17) of
Section 5607(a) of the MAA. In re Powell, 260 A.3d 298, 308-309 (Pa. Cmwlth.
2021) (municipal authority to construct buildings devoted to public use under
10
See supra nn.6-7.
11
A planned taking must be tailored for the actual purpose or it will be overturned as
excessive. Middletown Twp. v. Lands of Stone, 939 A.2d 331, 338 (Pa. 2007); see also Winger v.
Aires, 89 A.2d 521, 523 (Pa. 1952) (the taking of 55 acres for the public purpose of building a
school was excessive for its purpose).
12
Section 204 of the PRPA provides generally that “the exercise by any condemnor of the
power of eminent domain to take private property in order to use it for private enterprise is
prohibited.” 26 Pa.C.S. § 204(a)
13
Our Supreme Court has stated:
Although the power is an inherent attribute of sovereignty, it is
regulated by constitutional and statutory law, and thus, it can only
be exercised within the limitations established by law. The
Commonwealth may exercise the power of eminent domain directly
or indirectly by delegating it. Because eminent domain is in
derogation of private rights, any legislative authority for its use must
be strictly construed in favor of the landowner.
Reading Area Water Auth., 100 A.3d at 579.
14
We note the parties disagree as to whether the public uses for building types listed in Section
5607(a)(2) after the word “including” are exclusive or examples. We decline to address this issue
in the abstract given the fundamental disagreement as to the nature of the purpose of the proposed
building.
14
Section 5607(a)(2) does not include condemnation of nearby properties to install
power transmission lines for those buildings).
Also, the public use for which the properties are to be taken must not
run afoul of the limitations of the PRPA. Reading Area Water Auth., 100 A.3d at
582 (even assuming a condemnation can pass constitutional scrutiny, it must also be
statutorily permissible). Section 204(a) of the PRPA prohibits generally the use of
the power of eminent domain to take private property in order to use it for private
enterprise. 26 Pa.C.S. § 204(a). Our Supreme Court explained in Reading Area
Water Authority that the protections afforded by Section 204(a) are to be construed
in light of the Legislature’s post-Kelo intent to curtail abuse of the eminent domain
power by effecting constitutionally permissible takings with substantial “ancillary”
benefits to private enterprise:
Notably, PRPA was passed as a direct reaction to Kelo to
curb what legislators perceived as eminent domain abuse,
and with the goal of striking a reasonable balance between
(a) the need to defend private property rights from takings
accomplished for economic development purposes, and
(b) the legitimate needs of urban centers to rehabilitate
blighted areas imposing substantial, concrete harm upon
the public. See, e.g., House Legislative Journal, Nov. 1,
2005, at 2169-72; Senate Legislative Journal, April 25,
2006, at 1552. Whether or not the Constitution viewed as
merely “ancillary” the benefits to private enterprise
ensuing from a plan to use eminent domain to assist in
economic development, in the wake
of Kelo the Legislature began to view such benefits as
central and wanted to curtail the ability of condemnors to
take others’ property for such purposes. Against this
backdrop, the legislative body elected to phrase the central
prohibition broadly in terms of whether the subject
property is being condemned “to use it for private
enterprise,” 26 Pa.C.S. § 204(a), rather than “to use
it solely for private enterprise”—the latter of which, in any
event, would have had little effect on the status quo since
15
any condemnation accomplished solely for private
purposes would likely have failed the constitutional
public-use standard.
Id. at 583 (citation omitted). Clearly, the PRPA will not thwart a taking if there is a
private benefit of any size or nature. While the constitutional analysis often focuses
on weighing the respective benefits to the public and the private entity, requiring that
the public must be found to be the primary beneficiary of the project, the analysis
under the PRPA is slightly different. Under the PRPA the focus is on the purpose
and the ultimate use to which the taking is directed. If the genuine purpose of the
taking is for a public use, i.e., the public use is the true driving force behind the
taking, the PRPA is satisfied even if the project results in some private gain. For
instance, the taking of land to build a highway to mitigate traffic congestion clearly
has a public purpose, even though a number of private contractors may profit from
doing the work. On the other hand, if a road is being built solely in order to provide
access to a proposed private development, that likely will not be a public purpose,
even though other members of the general public may use the road. In other words,
if the role of the private actor is to facilitate creation of a genuine public use that is
permissible under the PRPA, even if some benefit accrues to the private entity (so
long as that benefit is not so disproportionate—i.e., primary—as to fail the
constitutional test).
Moreover, as noted by the parties, there are exceptions to Section
204(a)’s application provided by Section 204(b), including the following:
Subsection (a) does not apply if any of the following
apply:
(2) The property is . . . transferred or leased to
....
16
(iii) A private enterprise that occupies an incidental area
within a public project, such as retail space, office space,
restaurant and food service facility or similar incidental
area.
....
(7) The property taken is acquired for the development of
low-income and mixed-income housing projects pursuant
to . . . the Housing Authorities Law,[15] or to be developed
using financial incentives available for the development of
low-income and mixed-income housing projects under
[various state and federal statutes][.]
26 Pa.C.S. § 204(b)(2), (7)(i)-(vii) (footnote added).
In considering whether a public purpose authorized by statute was
properly invoked, we look for the “real or fundamental purpose” behind a taking.
Middletown Twp. v. Lands of Stone, 939 A.2d 331, 337 (Pa. 2007) [quoting Belovsky
v. Redev. Auth., 54 A.2d 277, 283 (Pa. 1947)]. The stated purpose of the taking
“must be the true purpose behind the taking,” or the Authority would not have the
power to act, and the taking would be void ab initio. See id. at 337-38. As noted,
the question of what constitutes a public use is “highly fact-dependent,” Reading
Area Water Authority, 100 A.3d at 580; see also City of Philadelphia v. Galdo, 217
A.3d 811 (Pa. 2019) (determination of whether property is devoted to a public use is
dependent upon the individualized facts of each case).
Resolution of these issues implicates the following common factual
issues: (1) how the Authority actually plans to use the properties and (2) to whom
the primary benefits would accrue. It is for resolution of these questions that we
remand.
15
Act of May 28, 1937, P.L. 955, as amended, 35 P.S. §§ 1541-1568.1.
17
The trial court’s general reliance upon the testimony of Mr. Fotta, of
the United Neighborhood Community Development Corporation, does little to
facilitate review. Mr. Fotta’s testimony (and that of other witnesses) is hardly
illuminating as to what the plans are and to whom the benefits from them will inure.
For instance, Mr. Fotta participated in the following exchange on cross-examination:
Q Would the equity investor own any portion of the
building?
A The equity investor would be a partner in the
partnership, yes.
Q At some point in time, their interests were
terminated; is that correct?
A The equity investor? Yes.
Q Can you explain to the Court how that would work?
A They would be involved for 15 years, which is the
compliance period.
Q What would happen to their interest at that point in
time?
A They would sell to the general partner.
Q Who is the general partner?
A The general partner would be Nantego Associates.
It’s a limited partner.
Q Nantego Associates, is that a for-profit enterprise?
A It is, yes.
18
(N.T. at 101-02, R.R. at 215a.) Mr. Sartori, the engineer engaged by PennDOT for
the Streetscape Project, testified as follows:
The idea is the [C]ity will sell the properties to the Nantego
Group and complete a lot[-]consolidation of the project
area but dedicate the right-of-way needed for the
Streetscape as legal right-of-way for city streets so we do
not have to acquire any of the right-of-way.
(N.T. at 27, R.R. at 196a.) Mr. Sartori further testified:
Q What do they do with those properties once they’re
purchased?
A The purpose is to turn them over to a developer to
revitalize the City of Nanticoke.
Q How does the Authority find the developer to turn
them over to?
A Our consultant would advertise.
(N.T. at 70, R.R. at 207a.) When asked who would own the proposed mixed-use
building, Mr. Nadolny, Chairman of the Authority, answered that it would be the
Nantego Corporation. (N.T. at 80, R.R. at 210a.) It is not clear from the record what
the entities referred to are and what role they will play in the Nantego Project.16 It
16
A search of the Pennsylvania Department of State’s business entity search website for the
name “Nantego” finds no entities registered called “Nantego Associates,” “Nantego Corporation,”
or “Nantego Development Corporation,” but, inter alia, two other entities called “Nantego”:
“Nantego Development LP,” a Domestic Limited Partnership, and “Nantego LLC,” a Domestic
Limited Liability Company. Pennsylvania Department of State Business Search,
https://file.dos.pa.gov/search/business [search for “Nantego” (last visited on March 24, 2023)].
Both were formed on January 22, 2018, and are located at 1 East Green Street, Nanticoke. Id.
Nantego LLC is listed as general partner for Nantego Development LP. Id. [follow hyperlink for
“Nantego Development LP (6657065)”].
19
is even more unclear the magnitude of benefits Nantego and/or the “equity investor”
will obtain from the project; the details of the public benefits in terms of housing
and transportation for elderly citizens or the community’s need for such services; or
how PennDOT’s right of way is involved.
On remand, we direct the trial court to hold a hearing de novo on the
above-delineated factual issues, as well as to make necessary findings of fact and
conclusions of law. While an evidentiary hearing on factual issues raised by the
preliminary objections was held before Judge Burke, as required by Section
306(f)(2) of the Eminent Domain Code, 26 Pa.C.S. § 306(f)(2), the peculiar
procedural posture of this case left a different judge to write an opinion supporting
unexplained determinations by Judge Burke. Pennsylvania courts have addressed
the legal consequences of a presiding judge’s unavailability due to retirement,
suspension, disability, resignation, or death where the record is left in an ambiguous
state. We believe that the Supreme Court’s explanation of what to do in such a
situation remains apt:
Ordinarily, where the record is in a confused state and the
trial court has not made findings of fact, we would remand
the proceedings for appropriate factual determinations by
the trial judge. In the present action, however, this is
impossible since the trial judge has retired from the bench
and is no longer available to make
the necessary findings. Therefore, in order to protect
against a possible miscarriage of justice in the present
situation, a new trial is necessary to clarify the many
ambiguities appearing on the record and to permit the
rendering of necessary factual and legal determinations by
a trial court.
Ballinger v. Howell Mfg. Co., 180 A.2d 555, 557 (Pa. 1962); compare Ercolani v.
Dep’t of Transp., Bureau of Driver Licensing, 922 A.2d 1034 (Pa. Cmwlth. 2007)
20
(new hearing unnecessary where newly assigned judge accepted previous judge’s
determinations of credibility and weight of testimony). It is extremely unfortunate
that resources must be expended in this pursuit, but we see no acceptable alternative.
We simply cannot exercise effective appellate review in this case without necessary
findings of fact.
In light of the foregoing, we vacate the trial court’s orders and remand
for proceedings consistent with the foregoing opinion.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Condemnation by the General :
Municipal Authority of the City of :
Nanticoke : No. 1426 C.D. 2021
:
Appeal of: Clifford J. Pomicter and :
Mary Lou Pomicter :
In Re: Condemnation by the General : No. 1427 C.D. 2021
Municipal Authority of the City of :
Nanticoke :
:
Appeal of: Nilved Apartments, LLC :
ORDER
AND NOW, this 27th day of March, 2023, the orders of the Court of
Common Pleas of Luzerne County are VACATED. The matters are REMANDED
for the purpose of a hearing de novo on the merits and the making of necessary
findings of fact and conclusions of law consistent with the directives of this Opinion.
Jurisdiction is RELINQUISHED.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita