Do the Provisions of the Judicial Code Automatically Apply in Eminent Domain Cases? The Commonwealth Court Recently Said No.

by McNees Wallace & Nurick LLC

On June 22, 2016, the Pennsylvania Commonwealth Court decided the case of Township of Millcreek v. Angela Cres Trust of June 25, 1998, 1725 C.D. 2015, which decided whether 42 Pa.C.S. § 5505 applies to eminent domain cases.  Section 5505 provides, in pertinent part, “[e]xcept as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any award within 30 days of its entry…except as otherwise provided or prescribed by law.”  Such a provision would typically apply to, for example, a party’s request that a trial order be modified to include attorneys’ fees, when such fees were not ascertainable until after the trial.  Practitioners have become accustomed to the provisions of the judicial code automatically applying to almost all cases.  So why was there any question whether 42 Pa.C.S. § 5505 applies to eminent domain cases?

In Millcreek, the Township of Millcreek filed a Declaration of Taking to condemn a portion of the property of the Angela Cres Trust of June 25, 1988 (the “Trust”) as part of a project to improve the Township’s storm water management system. The Trust filed preliminary objections to the declaration of taking pursuant to what is now Section 306 of the Pennsylvania Eminent Domain Code, 26 Pa.C.S. § 306.[1] (Recall, that preliminary objections in the context of eminent domain, as set forth in Section 306, are different than preliminary objections in a typical civil action under Pennsylvania Rule of Civil Procedure 1028.)  The Trust utilized the preliminary objections under Section 306 to argue that the improvement of the Township’s storm water management system was not a permissible basis for a condemnation under the Second Class Township Code.  The Court of Common Pleas of Erie County agreed with the Trust, and on appeal, the Commonwealth Court affirmed the lower court’s decision.  The Pennsylvania Supreme Court denied allocatur on October 12, 2012.

Over a year later, on October 23, 2013, the Trust filed a petition seeking reimbursement of its fees, costs, and expenses by the Township.  The Trust relied on paragraph (g) of Section 306, which states: “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.”  The Township responded by asserting the petition was untimely because, under 42 Pa.C.S. § 5505, the Trust only had 30 days after the trial court’s order sustaining the preliminary objections to file the petition.  The Erie County Court of Common Pleas disagreed, and awarded the Trust $517,868 in attorneys’ fees and $164,000 in expert fees.  The Township appealed to the Commonwealth Court.[2]

The Commonwealth Court affirmed the trial court’s decision.  In affirming the decision, the Commonwealth Court pointed out that Section 102(a) of the Eminent Domain Code specifically provides that the Code is the “complete and exclusive procedure and law to be followed in condemnation proceedings.” Because Section 306(g) does not prescribe a time period when a fee and cost petition must be filed, the Trust’s petition was timely.  The Court specifically rejected the assertion that 42 Pa.C.S. § 5505 applies to eminent domain proceedings.

In addition to providing guidance on when a condemnee must file a fee/cost petition, Millcreek also gives a glimpse into how the Court will view the application of other provisions of the judicial code to eminent domain proceedings.

[1] At the time Millcreek was filed, the Eminent Domain Code had not yet been amended.  The provisions relevant to this case, however, remain the same but have been renumbered and reordered under the current version of the Code.  To avoid confusion, this article will reference the current citations to the applicable provisions.

[2] The Trust also filed a cross-appeal, asserting that the trial court erred by not awarding the full amount of its requested damages.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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