HomeMy WebLinkAbout01-0587 FX
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION, OF THE
RIGHT-OF-WAY FOR STATE
ROUTE 0581, SECTION 004R/W, IN
THE BOROUGH OF CAMP HILL
AND THE TOWNSHIPS OF
HAMPDEN AND LOWER ALLEN
NO. tJ/ - $<; 7
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EMINENT DOMAIN PROCEEDING
IN REM
DECLARATIONOFT~G
TO THE HONORABLE, THE JUDGES OF THE SAID COURT:.
This Declaration of Taking, based on the provisions of Article IV, Section 402, of
the Eminent Domain Code, Act of June 22, 1964, P. L. 84,26 P. S. 1-402, as amended,
respectfully represents that:
1. The Condemnor is the Commonwealth of Pennsylvania, Department of
Transportation, acting through the Secretary of Transportation.
2. The address of the Condemnor is:
Commonwealth of Pennsylvania
Department of Transportation
Office of Chief Counsel
P.O. Box 8212
Harrisburg,PA 17105-8212
3. The Department of Transportation is authorized by the provisions of
Section 2003(e) of the Administrative Code of 1929, P. L. 177, 71 P. S. 513(e), as
amended, to acquire by gift, purchase, condemnation or otherwise, land in fee simple or
such other estate or interest as it shall determine, in the name of the Commonwealth for
all transportation purposes.
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4. The within condemnation has been authorized by a plan signed by the
Secretary of Transportation on September 21, 2000, entitled ''Drawings Authorizing
Acquisition of Right-of-Way for State Route 0581, Section 004R/W in Cumberland
County", a copy of which plan was filed in the County Recorder's Office in Cabinet 3,
Drawer 1 at Page 134 on December 14,2000.
5. The purpose of the within condemnation is to acquire property for
transportation purposes.
6. A Schedule of Property Condemned identifYing and specifYing the
location of the property hereby condemned is attached hereto and made a part hereof.
7. Plans showing the property hereby condemned may be inspected in the
Recorder's Office of the aforesaid County at the places indicated on the attached
Schedule of Property Condemned or, ifnot shown thereon, on the day of the filing of this
document being lodged for record or filed in said Recorder's Offices, where they may be
inspected.
8. The nature of the title hereby condemned is fee simple and temporary
construction easements.
9. In the event there are recoverable minerals (including gas and oil) within
the areas, if any, hereby condemned in fee simple, the mineral rights (including rights to
gas and oil) in those areas are hereby excepted and reserved from this condemnation,
provided however, that the right of support of the areas condemned is included within the
scope of this condemnation, and no access from the surface of such areas for removal
purposes will be allowed without permission from the Commonwealth.
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10. The payment of just compensation ill this matter is secured by the
Commonwealth's power of taxation.
11. I, Gary C. Fawver, P. E., Chief, Right-of-Way and Utilities Division, of
the Department of Transportation, do hereby depose, swear and affirm that I am
authorized by and do hereby execute this Declaration of Taking on behalf of the
Commonwealth of Pennsylvania, Department of Transportation, and that the averments
contained and set forth herein are true and correct to the best of my knowledge,
information and belief, and are made subject to penalties provided in 18 Pa. C. S. ~4904,
relating to false swearing to authorities.
WHEREFORE, fee simple title and temporary construction easements are hereby
condemned from the properties identified on the attached Schedule of Property
Condemned, as indicated on the plans referenced in paragraph 7 above.
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Chief, Right-of-Way and Utilities Division
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF RIGHT OF WAY FOR STATE
ROUTE 0581, SECTION 004R/W,
IN THE BOROUGH OF CAMP HILL AND THE TOWNSHIPS OF
HAMPDEN AND LOWER ALLEN
DECLARATION OF TAKING
Stuart A. Liner
Assistant Counsel
ill No. 15290
Commonwealth of Pennsylvania
Department of Transportation
Office of Chief Counsel
P.O. Box 8212
Harrisburg,PA 17105-8212
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION, OF THE RIGHT-
OF-WAYFORSTATEROUTE 0581,
SECTION 004R1W, IN THE BOROUGH
OF CAMP HILL AND THE TOWNSHIPS
OF HAMPDEN AND LOWER ALLEN
NO.
EMINENT DOMAIN PROCEEDING
IN REM
PRAECIPE TO ENTER APPEARANCE
TO THE PROTHONOTARY OF SAID COURT:
Please enter the appearance of Stuart A. Liner, Assistant Counsel, Office of Chief
Counsel, Department of Transportation, P.O. Box 8212, Harrisburg, PA 17105-8212, as attorney
for the Commonwealth of Pennsylvania, Department of Transportation, Condenmor in the above-
captioned proceedings.
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Stuart A. Liner
Assistant Counsel
Dated: => VI" vo.r( I /j ;00-0 I
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
IN RE:CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF RIGHT OF WAY FOR STATE ROUTE
0581, SECTION 004R/W,
IN THE BOROUGH OF CAMP HILL AND THE TOWNSHlPS OF HAMPDEN AND LOWER ALLEN
PRAEClPE TO ENTER APPEARANCE
Filed,
,20
A.M.
P.M.
Commonwealth of Pennsylvania
Department of Transportation
Office of Chief Counsel
P.O. Box 8212
Harrisburg, Pennsylvania 17105-8212
Telephone No. (717) 787-3128
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RW437 (10/99)
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
SCHEDULE OF PROPERTY CONDEMNED
(Declaration of Taking)
TYPE OF DESCRIPTION
D- Deed Description
P- Plan lodged for reeording with Notice
of Condemnation
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REMIS Pro;' No. 080063
Countv Cumberland
Fed. Proi. No. 100% State
Municipalities Camp Hill, Lemoyne,
Hanmden, Lower Allen
Route-Sec. 0581-004
R- Plan now reeorded in Reeorder's Offiee
Attached
Name, Mailing Address, Property Exhibit
Parcel Claim Interest of Condemnees, and Number . Plan (if any)
Type of
No. Number LocatioD of Condemned Prouertv (if anv) Descriution Recorded in
11 2100072??oo David T. Latsha nla R Cabinet 3, Drawer I,
1141 Columbus Ave. Page 134, sheets 12 &
Lemoyne, PA 17043 16
Location: Deed Book 174, Page 975
52 21000890000 Lawrence Robert Jameson and Jeannie Y. nla R Cabinet 3, Drawer I,
Jameson, hlw Page 134, sheets 7 & 14
9 Oakwood Circle
Camp Hill, PA 17011
Location: Deed Book U 28, Page 857
96 21001200000 Hampden Industrial Development nla R Cabinet 3, Drawer I,
Authority, A Subsisting Association Page 134, sheet 17
(owner)
William B. Boles, CEO
230 So. Sporting Hill Road
Mechanicaburg, P A 17055
Mickey C. Shuler (equitable owner)
332 Belle Vista Drive
Marysville, P A 17053
AS THEIR INTERESTS MAY APPEAR
Location: Deed Book M 30, Page 676
97 21001210000 Welbilt Homes, Inc. nla R Cabinet 3, Drawer I,
Owner Unlocateable Page 134, sheets 11 &
14
Location: Deed Book 14 D, Page 180
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PeNNSYLVANIA
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION, OF THE RIGHT-
OF-WAYFORSTATEROUTE 0581,
SECTION 004R1W, IN THE BOROUGH
OF CAMP HILL AND THE TOWNSHIPS
OF HAMPDEN AND LOWER ALLEN
NO. t) I-.'>~ ~
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TERM, 201J f
EMINENT DOMAIN PROCEEDING
IN REM
MEMORANDUM TO PROTHONOTARY
You are hereby informed that notice of the condemnation effected by the Declaration of
Taking filed to the above term and number on:::JIW"~. 2-1, Zet~/ , was recorded in the office of the
Recorder of Deeds of the above county in J1/Sc. 800;( 665' ,Page(s) 2'10
The condemnation book and page number, file number, or microfilm number of any property
plat filed or microfilmed separately from the said Notice of Condemnation is shown on the list of
property condemned which is attached hereto.
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
BY
District Right of ay Administrator
Engineering District No. 8-0
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CUMBERlhNiJ {~OUNTY
PENNSYLVANIA
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Page lof 1
RW437 (10/99)
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
SCHEDULE OF PROPERTY CONDEMNED
(Declaration of Taking)
"TYPE OF DESCRIPTION
D- Deed Description
P- Plan lodged for recording with Notiee
of Condemnation
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REMIS Proi. No. 080063
Countv Cumberland
Fed. Proi. No. 100% State
Municipalities Camp Hill, Lemoyne,
Ham~~n, Lower Allen
Route-Sec. 0581-004
R- Plan now recorded in Recorder's Office
Attached
Name, Mailing Address, Property Exhibit
"
Parcel Claim Interest of Condemnees, and Number Type of Plan (if any)
No. Number Location of Condemned Prooertv (if anv) Descriotion Recorded in
11 21000720000 David T. Latsha nla R Cabinet 3, Drawer 1,
1141 Columbus Ave. Page 134, sheets 12 &
Lemoyne, PA 17043 16
Location: Deed Book 174, Page 975
52 21000890000 Lawrence Robert Jameson and Jeannie Y. nla R Cabinet 3, Drawer 1,
Jameson, h/w Page 134, sheets 7 & 14
9 Oakwood Circle
Camp Hill, PA 17011
Location: Deed Book U 28, Page 857
96 21001200000 Hampden Industrial Development nla R Cabinet 3, Drawer 1,
Authority, A Subsisting Association Page 134, sheet 17
(owner)
William B. Boles, CEO
230 So. Sporting Hill Road
Mechanicaburg, P A 17055
Mickey C. Shuler (equitable owner)
332 Belle Vista Drive
Marysville, P A 17053
AS THEIR INTERESTS MAY APPEAR
Location: Deed Book M 30, Page 676
97 21001210000 Welbilt Homes, Inc. nla R Cabinet 3, Drawer 1,
Owner Unlocateable Page 134, sheets 11 &
14
Location: Deed Book 14 D, Page 180
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CUMBERLAND COUNTY
PENNSYLVANIA
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RW432 (03/99)
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION, OF THE
RIGHT-OF-WAY FOR STATE
ROUTE 0581, SECTION 004
IN THE BOROUGH OF CAMP HILL
AND TOWNSHIPS OF HAMPDEN
AND LOWER ALLEN
PROOF OF SERVICE
COMMONWEALTH OF PENNSYLVANIA
ss
COUNTY OF CUMBERLAND
NO. 01-587 CNIL
TERM,
EMINENT DOMAIN PROCEEDING
IN REM
David B. Reynolds, being duly sworn aecording to law, deposes and says that he is District Right-of-Way
Administrator of Engineering District 8-0, Department of Transportation, Commonwealth of Pennsylvania, and
that on or before February 2, 2001, notice of the filing of the declaration of taking in the above matter was
served on the condenmees affeeted thereby in eompliance with Article N, Seetion 405, of the Eminent Domain
Code, Aet June 22,1964, P.L. 84, as amended. A sehedule of the condenmees so notified is attaehed hereto and
made part hereof.
Sworn to and subseribed before me
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. Notary Public
NOTARIAL SEAL
My Commission Expires: GEORGED.ACHENBACH" NoIaty
My C Harrisburg, Daupl)/n County PabIIc
. ssJon Expires May 22, 2004
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RW437 (10199)
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
SCHEDULE OF PROPERTY CONDEMNED
(Declaration of Taking)
'TYPE OF DESCRIPTION
D- Deed Description
P- Plan lodged for recording with Notice
of Condemnation
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REMIS Proi. No. 080063
County Cumberland
Fed. Proi. No. 100% State
Municipalities Camp Hill, Lemoyne,
Hamoden, Lower Allen
Route-See. 0581-004
R- Plan now recorded in Reeorder's Office
Attached
Name, Mailing Address, Property Exhibit
Parcel Claim Interest of Condemnees, and Number . Plan (if any)
Type of
No. Number Location of Condemned Propertv (if any) Description Recorded in
11 21000720000 David T. Latsha n/a R Cabinet 3, Drawer I,
1141 Columbus Ave. Page 134, sheets 12 &
Lemoyne, PA 17043 16
Location: Deed Book 174, Page 975
52 2100089??oo Lawrence Robert Jameson and Jeannie Y. n/a R Cabinet 3, Drawer 1,
Jameson, h/w Page 134, sheets 7 & 14
9 Oakwood Circle
Camp Hill, PA 17011
Location: Deed Book U 28, Page 857
96 21001200000 Hampden Industrial Development n/a R Cabinet 3, Drawer I,
Authority, A Subsisting Association Page 134, sheet 17
(owner)
William B. Boles, CEO
230 So. Sporting Hill Road
Mechanicaburg, P A 17055
Mickey C. Shuler (equitable owner)
332 Belle Vista Drive
Marysville, PA 17053
AS THEIR INTERESTS MAY APPEAR
Location: Deed Book M 30, Page 676
97 21001210000 Welbilt Homes, Inc. n/a R Cabinet 3, Drawer I,
Owner Unlocateable Page 134, sheets II &
. 14
Location: Deed Book 14 D, Page 180
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PENI\JSYLVANIA
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION, OF THE
RIGHT-OF-WAY FOR STATE
ROUTE 0581, SECTION 004 R1W, IN
THE BOROUGH OF CAMP HILL
AND THE TOWNSHIPS OF
HAMPDEN AND LOWER ALLEN
NO. 01-587 CIVIL
EMINENT DOMAIN PROCEEDINGS
IN REM
Claim No.: 21001200000
PRELIMINARY OB,JECTIONS TO DECLARATION OF TAKING
AND NOW, this 2'''1 day of Mareh, 2001, eomes Miekey C. Shuler (hereinafter "Shuler" or
"Owner"), through his counsel, Joseph A. Klein, P.C., and files the within Preliminary Objections
to the Declaration of Taking filed to the above-captioned term and number and denies the power
and right of the Commonwealth of Pennsylvania, Department of Transportation (hereinafter
"PennDOT") to appropriate any part of the real property ofthe Owner deseribed in the
Declaration of Taking and the exhibits attaehed thereto filed in this matter (hereinafter referred to
as the "Property"), the propriety of the procedures followed by PennDOT, and the validity of the
Declaration of Taking for the following reasons as thus far known to the Owner:
1. The Declaration of Taking in the above-captioned matter was filed on January 29, 2001,
and served on the Owner on or about February 2, 200 I.
2. Owner's property is situate at 19'h Street and the Penn Central Railroad in the Borough of
Camp Hill, Cumberland County, Pennsylvania and eonsists of a % of an acre tract, more or less,
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improved by an offiee building and warehouse eontaining approximately 5,300 square feet which is
leased to Grinnell Fire Proteetion Systems Company, Ine.
3. Shuler is equitable owner of said property pursuant to an agreement entered into with the
Hampden Industrial Development Authority, whieh retains legal title to said property.
4. Paragraph 5 of the Declaration of Taking filed by PennDOT sets forth that: "The purpose
of the within condemnation is to aequire property for transportation purposes."
5. The Declaration of Taking filed by PennDOT avers in Paragraph 8 thereof that: "The
nature of the title hereby eondemned is fee simple and temporary construction easements"
6. Paragraph 5 is denied in that the a1iieulated purpose by PennDOT for the within
condemnation is for the eonstruction of a sound barrier for Route 581 which Route had been
construeted over six years prior to its having filed the instant Declaration of Taking.
7. Paragraph 8 of the Declaration of Taking avers that the nature of the title proposed to be
condemned is in part for: "temporary eonstruetion easements" but fails to set forth the time frame
within whieh the temporary eonstruetion easement would extinguish and total fee simple title revert to
the owner.
8. PennDOT has acted in an arbitrary and capricious manner in seeking to aequire more of
Owner's property than that reasonably required for its alleged "transportation purposes".
9. In order for traetor trailers and trueks to aeeess the offiee building and warehouse
eonstructed on Condemnee's property, it is necessary for said vehicles to use all of the area of/and
lying between the right of way line for PennDOT's Route 581 and Owner's offiee building and
warehouse in order to back said vehicles in and turn them around for loading and unloading
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merehandise and material located in the aforesaid leased offiee building and warehouse.
10. As the effect of both the loeation and configuration of Condemnor's proposed fee simple
taking and temporary construetion easements is sueh that the traetor-trailer and truek aeeess to
Condemnee's warehouse is obstructed, the same renders sueh real estate useless for said purpose.
II. The Lease Agreement entered into between Condemnee and Grinell Fire Protection
Systems Company, Inc. under date of January, 1985, which was extended on January 30, 1995
provided in Paragraph II thereof that:
II. Condemnation. In the event that the premises may become the subject of
eondemnation proceedings, either palty hereto shall immediately notity the other
thereof on receipt of all notiees, summons, judgments, orders and...
(e) In the event of a partial taking or eondemnation, which shall substantially
interfere with the operation ofthe Lessee's business on the premises, Lessee may,
at its option, terminate the entire Lease by giving, within thirty (30) days of the
final determination of such partial taking, a notice of its intention to do so, such
termination to become effective six (6) months after such notiee or at the time of
vacation ordered, whichever is sooner. If Lessee shall not exereise its option to
cancel the Lease, the Lease shall automatically terminate as to the part taken as of
the date title shall vest in the eondemnor and rent shall abate in proportion to the
square feet of leased space taken or condemned, and Lessor shall have the
responsibility of plaeing the office building and warehouse in usable condition if
the same becomes neeessary as a result of the taking or eondemnation.
A copy of the Lease Agreement and Extension of Lease Agreement are attached hereto as
Condemnee's Exhibit 1, incorporated herein by reference.
12. Despite PennDOT being apprised that the effeet ofthe filing of its Declaration ofTaking
would be to substantially interfere with the utilization ofCondemnee's office building and warehouse
by obstrueting the free ingress and egress to the same by traetor trailers and trueks delivering and
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pieking up materials and merehandise, PennDOT has refused to move baek the line for its taking in
fee simple and/or eliminate its temporalY constmction easement and has thus aeted in an arbitrary and
capricious manner thereby adversely affeeting the eeonomic viability of said stmcture causing a
substantial loss offair market value to Condemnee's buildings and remaining land.
13. Under date ofJanuary 30, 2001, PennDOT made an offer of estimated just compensation
to Condemnee in the sum of $10,500.00 which offer was made in palpable bad faith and in a
fraudulent manner in violation ofthe Constitution of the United States and that of the Commonwealth
of Pennsylvania whieh provide:
...nor shall pl'ivate propel.ty be tal<en or alJplied to public use, without llUthority
of law and without just compensation being first made or secured.
And it is in fllliher violation of the provisions of the provisions of the Pennsylvania Eminent Domain
Code, which require that eondemnors sueh as PennDOT offer their condemnees that amount of
money whieh represents a bona fide estimate of just compensation.
14. The purpOlied condemnation is void as not having been made in good faith and for the
reasons previously set forth, will eause inordinate eeonomie detriment to Owner beyond that which
the public need constitutionally permits or requires.
15. The purpOlied taking of the property of the Owner is a gross abuse of discretion, is
arbitraIY and capricious as constituting a taking of more of Owner's property than the pub lie need
reasonably requires for the purposes averred in the instant Declaration of Taking, and is not in
accordance with sound engineering practiees consonant with the requirements of due process oflaw
and is, in addition thereto, beyond what the public need constitutionally permits or requires.
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16. The Owner reserves the right to amend these Preliminary Objections insofar as is
appropriate with any information developed by him as a result of diseovery to be undertaken in
eonjunction with these proceedings.
WHEREFORE, the Owner, Mickey C. Shuler, Condemnee in the instant aetion,
respeetfully requests that This Honorable Court declare the purported taking of his property void
and of no effect and order a revesting title in said Owner to the property purportedly condemned
by Condemnor, Commonwealth of Pennsylvania, Depaltment of Transportation ("PennDOT")
and to assess an award against said Condemnor and in favor of the Owner for damages under the
provisions of!H -406 and 91-408 of the Eminent Domain Code, Act of June 22, 1964, P.L. 84,
Art. IV, 26 P.S. 991-406 and 1-408, as amended.
Respectfully submitted,
.Joseph A. Klein, P.c.
Attorney for Owner/Condemnee
Date: 3 ~~ lOl
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VERTFICA TlON
I, Miekey C. Shuler, hereby affirm, subjeet to the penalties of 18 Pa.C.S. ~4904 relating to
unsworn falsification to authorities, that 1 am the equitable Owner ofthe property whieh is the subjeet
of the instant eondemnation and am authorized to make this Verification, and that the statements of
fact in the foregoing PRELIMINARY OBJECTIONS TO DECLARATION OF TAKING are
true and correct to the best of my present knowledge, information, and belief
Date: 3(a. [0\
From: Mickey Shuler To: JOE
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Date: 311/01 Time: 5:20:14 PM
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EXTENSION OF LEASE AGREEMENT
THIS AGREEMENT (this "A'greement"), is made this ,) I day ofOeeember, 1999, by
and between SHULER & SHULER, a General Partnership ("Lessor"), and GRINNELL
CORPORATION ("Lessee").
WITNESSETH
WHEREAS, on the 25th day of January, 1985, Lessor and Lessee (fol1l1erly known as
Grinnell Fire Protection Systems Company, Ine.) entered into a lease for thc premises located at
1909 Stale Street (fomlerly known as 19th Street and Penn Ccntra1 Railroad) (thc "Lease") for a
tcrm bcginning February 1, 1985, and expiring January 31, 1990; and
WHEREAS, said Lease was renewed for an additional term oflivc years for the pcriod
from February 1,1990, to January 31,1995;
WHEREAS, said Lease was renewed for an additional tcrm of live years Ic)r the period
rrom February I, 1995, to January 31, 2000; and
WH i-:RFAS, the parties hereto wish to extend the Lease on the terms hereinafter stated.
NOW, THEREFORE, in consideration of the mutual covenants and agrccments herein
contained, the parties hereto hereby agrce as follows:
I. The Lease is extended for an additional term of five (5) years from Fcbruary 1,2000.
through January 31, 2005, at an annual rent of Eighteen Thousand Nine Hundred
Seventy-Seven and 28/100 Dollars ($18,977.28), payable in equal monthly installmcnts
of Onc Thousand Fivc Hundred Eighty-one and 44/100 Dollars ($1,581.44), commencing
on f'ebrualY 1,2000, and continuing on the first day of each month during the remainder
of said lenn.
It is exprcssly understood that except as provided for in Paragraph 1 above, all or the
tenns, covenants, conditions, provisions, and agreements contained in thc LcaSe shall be and
remain in full force and effect.
This Agreement is binding lip on the heirs, executors, administrators, Sllccc,;sors and
assigns orthe respeetive partie" herelo.
IN WITNESS WHEREOF, thc parties hereto have set their hands ami seals as ofthc day
and year first above written.
GRINl':ELL CORPORATION
BY~~ -1J''tP~
Bernard J. herty
Its Senior Vice-President
SHULER & SHULER
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EXTENSION OF LEASE AGREEMENT
THIS AGREEMENT (this "Agreement"), is made this:l.s2- day ofJanuary, 1995, by and
between SHULER & SHULER, a General Partnership ("Lessor"), and GRINNELL
CORPORATION ("Lessee").
WITNESSETH
WHEREAS, on the 25th day of January, 1985, Lessor and Lessee (fonnerly known as
Grinnell Fire Protection Systems Company, Inc.) entered into a lease for the premises located at
19th Street and Penn Central Railroad (the "Lease") for a term beginning February 1, 1985, and
expiring January 31, 1990; and
WHEREAS, said Lease was renewed for an additional term of five years for the period
from February 1, 1990, to January 31, 1995; and
WHEREAs. the parties h.ereto wish to extend the Lease on the terms hereinafter stated.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the parties hereto hereby agree as follows:
1. The Lease is extended for an additional term offive (5) years from February I, 1995,
through January 31, 2000, at an annual rent of Sixteen Thousand Nine Hundred Forty-
Four Dollars (SI6,944.00), payable in equal monthly installm'i'nts of One Thousand Four
Hundred Twelve Dollars (S1,412.00), commencing on February 1, 1995, and continuing
on the first day of each month during the remainder of said teml.
It is expressly understood that exeept as provided for in Paragraph I above, all of the
terms, covenants, conditions, provisions, and agreements contained in the Lease shall be and
remain in full force and effect.
This Agreement is binding upon the heirs, executors, administrators, successors and
assigns of the respective parties hereto.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals as ofthe day
and year first above written.
GRINNELL CORPORATION
By: 6~Ol I ~~l~~
Bernard J. Do' rty ....L
Its Senior Vice-President -G b,'r'
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LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into this day
of January, 1985, by and between SHULER & SHULER. a general
partnership, having its principal place of business at 15
Mountain View Drive, Enola, Pennsylvania 17025 (hereinafter
called "Lessor"), and GRINNELL FIRE PROTECTION SYSTEMS COMPANY
,
INC., a corporation organized under the laws of the State of
Delaware (hereinafter called "Lessee").
WITNESSETH:
That Lessor, in consideration of the rents and covenants
hereinafter stipulated to be paid and performed by Lessee, does
hereby grant, demise and lease unto Lessee, and Lessee hereby
rents from Lessor, the following described premises:
Property situated at 19th Street and Penn Central Railroad
in the Borough of Camp Hill, Cumberland County,
pennsylvania, consisting of three-quarter (3/4) of an acre,
more or lass, and including those certain structures and
improvements. (an office building and warehouse containing
5,300 sq. ft.) constructed thereon and a paved parking lot
and paved driveway all hereinafter sometimes referred to
collectively as the "pr,mises", to be used and occupied as
an Office. warehouse and fabrication shop for fire protec-
tion sprinkler systems, alarm and' detection systems, etc.
The following express covenants and conditions are a part
of this Lease and are specifically assented to by Lessor and
Lessee.
1. The term of this Lease Agreement shall be for five (5)
years commencing on the 1st day of February, 1985, and ter-
minating on the 31st day of January. 1990.
Provided that at the end of the original term of this
Lease, Lessee not being in default of any term, condition or
covenant contained in this Lease, Lessee shall have the right
and option to renew this Lease, by written notice delivered to
Lessor no later than 60 days prior to the expiration of the
original term, for an additional period of five years from
February 1, 1990 to January 31, 1995, under the same terms,
conditions, and covenants contained herein, except the rental
for the renewal term. Rent for the renewal term shall be
negotiable between the parties, but in no event shall any
increase be greater than that reflected in the Consumer Price
Index for Urban Wage Earners, Clerical Workers ("Index")
pUblished by the U.S. Department of Labor, Bureau of Labor
Statistics, U.S. City Average, all terms (1967 100). The
current index shall be the average index for the twelve month
period preceding the date on which the renewed term commences;
the base index shall be the average index for the calendar year
1985.
2. The annual rent to be paid by Lessee to Lessor for said
premises shall be at the rate of Thirteen Thousand Two Hundred
Fifty ($13,250.00), Dollars payable in twelve (12) equal
monthly installments, each of Eleven Hundred Four and 17/100
Dollars ($1,104.17), in advance. on or before the first day of
each and every calendar month during the term hereof.
3. In addition to the rental herein specified, Lessee
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1. The term of this Lease Agreement shall be for five (5)
years commencing on the 1st day of February, 1985, and ter-
minating on the 31st day of January, 1990.
Provided that at the end of the original term of this
Lease, Lessee not being in default of any term, condition or
covenant contained in this Lease, Lessee shall have the right
and option to renew this Lease, by written notice delivered to
Lessor no later than 60 days prior to the expiration of the
original term, for an additional Period of five years from
February 1, 1990 to January 31, 1995, under the same terms,
conditions, and covenants contained herein, except the rental
for the renewal term. Rent for the renewal term shall be
negotiable between the parties, but in no event shall any
increase be greater than that reflected in the Consumer Price
Index for Urban Wage Earners, Clerical Workers ("Index")
published by the U.S. Department of Labor, Bureau of Labor
Statistics, U.S. City Average, all terms (1967 100). The
current index shall be the average index for the twelve month
period preceding the date on which the renewed term commences;
the base index shall be the average index for the calendar year
1985.
2. The annual rent to be paid by Lessee to Lessor for said
premises shall be at the rate of Thirteen Thousand Two Hundred
Fifty ($13,250.00), Dollars payable in twelve (12) equal
monthly installments, each of Eleven Hundred Four and 17/100
Oollars ($1,104.17), in advance, on or before the first day of
each and every calendar month during the term hereof.
3. In addition to the rental herein specified, Lessee
covenants and agrees to pay the cost of utility service
including the cost of connecting, installing, disconnecting
aboveground services but not including the cost of connecting,
installing, and disconnecting underground services; Lessee
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covenants and agrees to pay all insurance premiums on any
coverage required to be taken out by Lessor or Lessee here-
under, and in addition Lessee agrees to pay all taxes assessed
or imposed upon the demised premises or the building on the
premises. Lessor agrees to obtain a division of the premises
for taxing pUrposes, if they are not assessed apart from other
property, during the term of this lease, so that all tax bills
pertaining to the premises shall be directed to the Lessee.
Lessee agrees to indemnify and hold harmless Lessor from and
against any loss which is not Lessor's fault, resulting from
non-payment or late payment of such taxes. All amounts due
hereunder shall be prorated for that part of the first and last
year covered hereby. Lessee shall have the right to contest in
good faith the validity or amount of rates, charges, or taxes,
either in Lessor's name or in its own name, at its expense, and
Lessor shall cooperate with Lessee and comply with all reason-
able requests of Lessee in this regard. In the event Lessor is
billed for any such expense, it will notify Lessee. Lessor may
remit payment therefor and add any amount so paid to the next
monthly rental for reimbursements and Lessee shall be obligated
to pay in the same manner as rent, or Lessor shall, at its
option, upon ~ceipt promptly transmit the bill to Lessee in th
same manner as notices are to be transmitted hereunder. It is
the intention of the parties hereto that the rent to be paid
hereunder shall be paid to Lessor absolutely net without deduc-
tions of any nature whatsoever, foreseeable or unforeseeable.
4. Place of Payment All rent shall be payable without
prior notice or demand to Lessor at 15 Mountain View Drive,
Enola, PA 17025, or at such other place as Le$sor may from
time to time designate by notice in writing. All additional
payments to be paid hereunder shall be invoiced to the Lessee,
c/o Legal Department, 10 Dorrance street, Providence, Rhode
Island 02903, or at such other place as Lessee may from time
to time designate by notice in writing.
5. Affirmative Covenants of Lessee Lessee covenants and
agrees that it will without demand:
( a )
(b)
(c)
Lessee shall use the premises for the purposes of
carrying on its current business and reasonable
extensions thereof, and shall not conduct such
business as would violate any Federal, state or local
law or ordinance.
Payment of rent: Pay the rent and all other charges
herein reserved as rent on the days and times and at
the place that the same are made payable, without
fail, and if Lessor shall at any time or times accept
said rent or rent charges after the same shall have
become due and payable, such acceptance shall not
excuse delay upon subsequent occasions, or constitute
or be construed as a waiver of any of Lessor's rights.
Cleaninq, Repairing, etc.: Keep the demised premises
clean and free from all ashes, dirt and other refuse
matter; replace all glass windows and doors broken;
keep all waste and drain pipes open; repair all damage
to plumbing and to the premises in general; keep the
same in good order and repair as they are now, reason-
able wear and tear and damage by accidental fire or
other casualty not occurring through negligence of
Lessee or those employed by or acting for Lessee,
structural defects, riot, civil disorder, sabotage and
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5. Affirmative Covenants of Lessee Lessee covenants and
agrees that it will without demand:
(a) Lessee shall use the premises for the purposes of
carrying on its current business and reasonable
extensions thereof, and shall not conduct such
business as would violate any Federal, State or local
law or ordinance.
(b) Payment of rent: Pay the rent and all other charges
herein reserved as rent on the days and times and at
the place that the same are made payable, without
fail, and if Lessor shall at any time or times accept
said rent or rent charges after the same shall have
become due and payable, such acceptance shall not
excuse delay Upon subsequent occasions, or constitute
or be construed as a waiver of any of Lessor's rights.
(c) Cleaning, Repairing, etc.: Keep the demised premises
clean and free from all ashes, dirt and other refuse
matter; replace all glass windows and doors broken;
keep all waste and drain pipes open; repair all damage
to plumbing and to the premises in generalj keep the
sBme in good order and repair BS they are now, reason-
able wear and tear and damage by accidental fire or
other casualty not occurring through negligence of
Lessee or those employed by or acting for Lessee,
structural defects, riot, civil disorder, sabotage and
acts of pUblic enemy alone, excepted. The Lessee
agrees to surrender the demised premises in the same
condition in which Lessee has herein agreed to keep
the same during the continuance of this Lease reason-
able wear and tear excepted.
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(d) Re uirements of public Authorities: Comply with any
requ rements of any of the cons ~tuted public
authorities, and with the terms of any state or
Federal statute or local ordinance or regulation
applicable to Lessee or his use of the demised
premises. and save Lessor harmless from penalties,
fines, costs or damages resulting from failure so to
do.
(f)
(e) Fire:
Use every reasonable precaution against fire.
(g)
(h)
Surrender of Possession: Peaceably deliver up and
surrender possession of the demised premises to Lessor
at the expiration or sooner termination of this Lease,
promptly delivering to Lessor at its office all keys
for the demised premises.
Notice of Fire, etc.: Give to Lessor prompt written
notice of any accident, fire or damage occurring on or
to the demised premises.
.-
Condition of Pavement: Lessee shall be responsible
for the condition of the driveway, parking lot,
sidewalk or other pavement, or for any curb, cellar
doors, and other outside erections in the pavement.
Lessee shall keep the pavement free from snow and ice,
and hereby agrees that Lessor shall not be liable for
any accidents, due Or alleged to be due to any accumu-
lations of snow and ice.
6. Negative Covenants of Lessee: Lessee covenants and
agrees that it will do none of the following things without the
consent in writing of Lessor first had and obtained, which
consent shall not be unreasonably withheld.
(a) Use of Premises: Occupy the demised premises in any
other manner or for any other purpose than as above
set forth.
(b) Desert Premises:
of this Lease.
Desert said premises during the term '
7. Lessor's Rights: Lessee covenants and agrees that
Lessor shall have the right to do the following things and
matters in and about the demised premises:
(a)
( b)
(c)
Inspection of Premises: At all reasonable times by
itself or its duly authorized agents to go upon and
inspect the demised premises and every part thereof.
Sale or Rent Sign:- Prospective Purchasers or Tenants
To display a "For Sale" sign after notice from either
party of intention to determine this Lease, or to
display at any time within three months prior to the
expiration of this Lease, a "For Rent" sign, or both
"For Rent" and "For Sale" signs; and all of said signs
shall be placed upon such part of the premises as
Lessor may e~ect and may contain such matter as Lessor
shall require. Prospective purchasers or tenants
authorized by Lessor may inspect premises at reason-
able hours at any time.
In the event of the failure of Lessee within a
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lations of snow and ice.
6. Negative Covenants of Lessee: Lessee covenants and
agrees that it will do none of the follow!ng things without the
consent in writing of Lessor first had and obtained, which
consent shall not be unreasonably withheld.
(a) Use of Premises: Occupy the demised premises in any
other manner or for any other purpose than as above
set forth.
(b~ Desert Premises: Desert said premises during the term'
of this Lease.
,
,
7. Lessor's Rights: Lessee covenants and agrees that
Lessor shall have the right to do the Following things and
matters in and about the demised premises:
(a)
(b)
( c)
Inspection of Premises: At all reasonable times by
itself or its duly authorized agents to go upon and
inspect the demised premises and every part thereof.
Sale or Rent Slgn,- Prospective Purchasers or Tenants
To display a "For Sale" sign aFter notice from either
party of intention to determine this Lease, or to
display at any time within three months prior to the
expiration of this Lease, a "For Rent" Sign, or both
uFor Rent" and "For Sale" signs; and all of said signs
shall be placed upon such part of the premises as
Lessor may elect and m&y contain such matter as Lessor
shall require. Prospective purchasers or tenants
authorized by Lessor may inspect premises at reaSOn-
able hours at any time.
In the event of the Failure of Lessee within a
reasonable time to perform the covenants of main-
tenance of the structure as it is hereinabove pro-
vided, the Lessor may go upon the premises and perform
such maintenance and repair, and the cost thereof, at
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the sole option of Lessor, to be charged to the Lessee
as additional rent.
B. Affirmative Covenants of Lessor Lessor covenants and
agrees that it will:
(a) Deliver the premises including the building thereon in
good order at the time of the beginning of the term
hereof.
(b) Warrant and defend Lessee against any claim or judg-
ment which threatens or interferes with the quiet
enjoyment of the premises throughout the term of this
Lease and any and all additional term or terms here-
under, so long as Lessee pays the rent and additional
sums billed, to be paid in the same manner as rent as
provided herein, and performs and observes all the
covenants and provisions hereof.
(c) Give prompt written notice to Lessee of any casualty,
accident, injury, death or other claim of liability of
whic~ it is made aware which could ripen into a
liability to Lessee under the terms of this Lease or
which may be a risk of Lessee's insurance carrier
under this Lease.
9. Assignment of Risk: It is understood and agreed by and
between Lessor and Lessee that Lessee shall bear the entire
risk of its tenancy of the premises and Lessee agrees to pro-
tect and save harmless Lessor from claims, juqgments, loss,
cost or expense by reason of any injury or death to persons or
damage to property including employees or property of Lessor
arising out of Lessee's sole negligent use and occupation of
the premises under this Lease or any violation of Lessee of any
covenant or agreement herein contained, provided that Lessee
shall have no such obligation with respect to any such injury,
death or damage caused by the sole negligence of Lessor, or by
the violation by Lessor of any covenant or Agreement herein
contained.
10. Builders Warranties: Lessor agrees to assign an
interest in all rights it has, as owner of the prem1ses, under
guarantees and warranties of building, fixtures and equipment
to Lessee which shall be necessary in order to enable Lessee to
participate in or initiate appropriate proceedings to enforce
or bring action on the same, whenever Lessor is unwilling or
unable to do so, which Lessee shall have. the right to do, at
Lessor's cost and expense, provided such proceedings shall
involve material defects under such guarantees and warranties
in the building, fixtures and equipment. Lessor further agrees
to obtain from the guarantors and warrantors any necessary
aCknowledament of and agreement to such assignments. It is
aareed that Lessor shall, upon completion of the structure
leased herein, obtain from each contractor as statement of
warranty or guarantee for materials and workmanship where the
same is necessary to comply with this paragraph. Any cost and
expense Lessee may have in enforcing or bringing and maintain-
ina an action on these Obligations shall be chargeable against
Leisor by offsetting the charges or expenses so incurred
against rental.
11. Condemnation: In the event that the premises may
become the SUbject of condemnation proceedings, either party
hereto shall immediately notify the other thereof on receipt
,.
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r~sk of its tenancy of the premises and Lessee agrees to pro-
tect and save harmless Lessor from claims, juqgments, loss,
cost or expense by reason of any injury or death to persons or
damage to property including employees or property of Lessor
arising out of Lessee's sole negligent use and occupation of
the premises under this Lease or any violation of Lessee of any
covenant or agreement herein contained, provided that Lessee
shall have no such obligation with respect to any such injury,
death or damage caused by the sole negligence of Lessor, or by
the violation by Lessor of any covenant or Agreement herein
contained.
10. Builders Warranties: Lessor agrees to assign an
interest in all rights it has, as owner of the premises, under
guarantees and warranties of building, fixtures and equipment
to Lessee which shall be necessary in order to enable Lessee to
participate in or initiate appropriate proceedings to enforce
or bring action on the same, whenever Lessor is unWilling or
unable to do so, which Lessee shall have the right to do, at
lessor's cost and expense, provided such proceedings shall
involve material defects under such guarantees and warranties
in the building, fixtures and equipment. Lessor further agrees
to obtain from the guarantors and warrantors any necessary
acknowledgment of and agreement to such assignments. It is
agreed that Lessor shall, upon completion of the structure
leased herein, obtain from each contractor as statement of
warranty or guarantee for materials and workmanship where the
same is necessary to comply with this paragraph. Any cost and
expense Lessee may have in enforcing or bringing and maintain-
ing an action on these obligations shall be chargeable against
Lessor by offsetting the charges or expenses so incurred
against rental.
11. Condemnation: In the event that the premises may
become the subject of condemnation proceedings, either party
hereto shall immediately notify the other thereof on receipt of
all notices, summons, jUdgments, orders and
(a) Either party may, at its own expense, proceed to take
a part in the condemnation action or proceedings. The
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parties shall cooperate and Lessor, where it is
actively involved in resisting the condemnation, shall
be allowed to control the litigation. The Lessor
agrees that it shall not actively support any such
condemnation proceedings.
(b) In the event that the demised premises are taken or
condemned in their entirety, the Lease shall forth-
with terminate and the rent cease.
(c)
12.
(a)
(b)
In the event of a partial taking or condemnation,
which shall substantially interfere with the operation
of the Lessee's business on the premises, Lessee may,
at its option, terminate the entire Lease by giving,
within thirty (30) days of the final determination of
such partial taking, a notice of its intention to do
so, such termination to become effective six (6)
months after such notice or at the time of vacation
ordered, whichever is sooner. If Lessee shall not
exercise its option to cancel the Lease, the Lease
shall automatically terminate as to the part taken as
of th~ date title shall vest in the condemnor and rent
shall abate in proportion to the square feet of leased
space taken or condemned, and Lessor shall have the
responsiblity of placing the office building and ware-
house in usable condition if the same becomes
necessary as a result of the taking or condemnation.
In either event, the Lessee waives all other claims
against the ~essorby reason of the complete or
partial taking of the demised premisas. Notwith-
standing the foregoing provisions hereof, Lessee does
not assign to Lessor any damages payable for (i)
movable trad~ fixtures installed by Lessee or anybody
claiming under Lessee, at its own expense or (ii)
relocation expenses recoverable by Lessee and/or (iii)
any bonus value over the unexpired term of said lease
recoverable by Lessee from condemning authority, bonus
value being defined as any increase in rental costs to
Lessee for new space, as a result of taking, over and
above rental costs for unexpired term of said Lease.
Destruction of Premises
In the event that the demised premises is totally
destroyed or so damaged by fire or other casualty not
occurring through fault or negligence of the Lessee or
those employed by or acting for him, that the same
cannot be repaired or restored within a reasonable
time, this Lease shall absolutely cease and determine
as of the day of the casualty, .and the rent shall
abate for the balance of the term.
Partial Destruction of Premises If the damage caused
as above set out be only partial and such that the
premises can be restored to their prior condition
within ninety (90) days, the Lessor shall restore the
same within this period. The Lessor reserves the
right to enter upon the demised premises whenever
necessary to repair damage caused by fire or other
casualty to the demised premises even though the
effect of such entry be to render the demised premises
or a part thereof untenantable. The rent shall be
apportioned and suspended between the time the damage
occurs and the completion of repairs, taking into
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not assign to Lessor any damages payable for (i)
movable trade fixtures installed by Lessee or anybody
claiming under Lessee, at its own expense or (ii)
relocation expenses recoverable by Lessee and/or (iii)
any bonus value over the unexpired term of said lease
recoverable by Lessee from condemning authority, bonus
value being defined as any increase in rental costs to
Lessee for new space, as a result of taking, over and
above rental costs for unexpired term of said Lease.
12.
( a )
(b)
~<'lgf! 1<::: OT .,,01
Destruction of Premises
In the event that the demised premises is totally
destroyed or so damaged by fire or other casualty not
occurring through fault or negligence of the Lessee or
those employed by or acting for him, that the same
cannot be repaired or restored within a reasonable
time, this Lease shall absolutely cease and determine
as of the day of the casualty, and the rent shall
abate for the balance of the term.
Partial Destruction of Premises If the damage caused
as above set out be only partial and such that the
premises can be restored to their prior condition
within ninety (90) days, the Lessor shall restore the
same within this period. The Lessor reserves the
right to enter upon the demised premises whenever
necessary to repair damage caused by fire or other
casualty to the demised premises even though the
effect of such entry be to render the demised premises
or a part thereof untenantable. The rent shall be
apportioned and suspended between the time the damage
occurs and the completion of repairs, taking into
account the proportion of the demised premises
rendered untenantable and the duration of the Lessor's
possession. Lessee shall bear no responsibility for
injury to or death of persons or 1055 of property to
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(c)
Lessor or any contractor or his employees on the
premises in connection with repair of the premises
after a fire or other casualty.
In the event of failure of Lessor to perform the
covenants of Article 12(b) hereof within ninety (90)
days, Lessee may peform such repairs at Lessor's cost
and expense and offset the same against rent charges
as' and when due.
( d)
Damage for Interruption of Use: Lessor shall not be
liable for any damage, compensation or claim by reason
of inconvenience or annoyance arising from the neces-
sity of repairing any portion of the building, the
interruption in the use of the premises, or the
termination of this Lease by reason of the destruction
of the premises, except to the extent that such inter-
ruption shall have been caused by a failure or defect
in the primary structure or of the structural quality.
13. . Lessee's Ri ht to Erect Interior Alterations: Lessee
shall have e." r g ,power an pr~v~ ege 0 erec emporary
partitions, including office partitions, or to alter existing
partitions ~s may be necessary to facilitate the handling of
Lessee's business, and to erect shelves, bins, machinery,
electrical fixtures, additional lights and wiring and other
trade appliances, provided, however, that whenever it appears
that any such additions or alterations may affect the primary
structure or structural qualities of the premises, such ad-
ditions may be made only upon giving sixty (60) days notice
thereof. Lessee shall not be under any obligations to remove
any addition or additions made to the premises under the right,
power and privilege granted in this article upon the termi-
nation of this Lease, but shall have the right to do so at its
option, in which event, Lessee agrees to repair, at its own
expense, any damage caused by such removal. In any event, the
Lessee agrees that it shall not exercise the right, power and
privilege granted in this article in such a manner as to damage
or affect the primary structure or structural qualities of the
premises. Any and all costs and expenses arising from or in
connection with the additions or alterations as herein per-
mitted shall be the sole responsibility of Lessee, and Lessee
agrees to indemnify and save lessor harmless against the entry
of any mechanics' liens arising out of any such additions or
alterations.
14. Installation of Signs: Lessee shall have the right to.
install such signs as it may desire upon the roof and exterior
walls of said building and to remove the same at any time,
subject to such rules and regUlations as may be in existence
and applicable to the premises in the Borough of Camp Hill,
Cumberland County, State of Pennsylvania; such installations
shall be in such manner as to avoid damage, and in the event
damage shall be so caused, Lessee shall repair it in a good and
workmanlike manner. Lessee will not injure, overload or deface
the demised premises or the approaches thereto nor suffer or
permit the demised premises or any part thereof to be injured,
overloaded or defaced.
15. Waiver of Custom: It is hereby covenanted, and agreed,
any law, usage or custom to the contrary notwithstanding, that
the parties shall have the right at all times to enforce the
covenants and provisions of this Lease in strict accordance
with the terms hereof, notwit~st~n?ing_any conduct or custom on
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. 'thereof. lessee shall not be ~nder-any obligaiion~ to remove
any addition or additions ma~e to the premises under the right,
power and privilege granted ~n this article upon the termi-
nation of this lease, but shall have the tight to do so at its
option, in which event, Lessee agrees to repair, at its own
expense, any damage caused by such removal. In any event, the
lessee agrees that it shall not exercise the right, power and
privilege granted in this article in such a manner as to damage
or affect the primary structure or structural qualities of the
premises. Any and all costs and expenses arising from or in
connection with the additions or alterations as herein per-
mitted shall be the sole responsibility of lessee, and lessee
agrees to indemnify and save lessor harmless against the entry
of any mechanics' liens arising out of any such additions or
alterations.
14. Installation of Signs: Lessee shall have the right to.
install such signs as it may desire upon the roof and exterior
walls of said building and to remove the same at any time,
subject to such rules and regulations as may be in existence
and applicable to the premises in the Borough of Camp Hill,
Cumberland County, State of Pennsylvania; such installations
shall be in such manner as to avoid damage, and in the event
damage shall be so caused, Lessee shall repair it in a good and
workmanlike manner. lessee will not injure, overload or deface
the demised premises or the approaches thereto nor suffer or
permit the demised premises or any part thereof to be injured,
overloaded or defaced.
15. Waiver of Custom: It is hereby covenanted and agreed,
any law, usage or custom to the contrary notwithstanding, that
the parties shall have the right at all times to enforce the
covenants and provisions of this Lease in strict accordance
with the terms hereof, notwithstanding any conduct or custom on
the part of the parties in refraining from so doing at any time
or times; and, further, that the failure of either party at any
time or times to enforce its rights under said covenants and
provisions strictly in accordance with the same shall not be
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construed as having created a custom in any way or manner con-
trary to the specific terms, provisions and covenants of this
Lease or as having in any way or manner modified the same.
].6. Default:
The following shall be acts of default:
(a) Non-payment in full when due any and ~ll installments
of rent and/or any other charges or payment herein
reserved, included, or agreed to be treated or col-
lected as rent and/or any other charge, expense, or
cost herein agreed to be paid by either party, or
failure or refusal to do so for thirty (3D) days after
receipt of written notice such rent or other charge,
expense or cost is due.
(b) Violation, failure or breach in performance of any
covenant or agreement herein contained without an
undertaking or an attempt to rectify any such vio-
lation, failure or broken covenant within thirty (30)
days after receipt of written notice of such viola-
tion, failure or breach of covenant; or
.
(c) Becoming financially embarrassed or insolvent, or
executing an assignment for the benefit of creditors,
or the filing of a petition in bankruptcy by or
against one of the parties, or a bill in equity or
other proceeding for the appointment of a receiver for
one of the parties is filed, or if proceedings for
reorganization or for composition with creditors under
any State or Federal Law be instituteo by or against
one of the parties, or if the real or personal
property of one of the parties shall be levied upon
and sold by any Sheriff, Marshall or Constable, and
such insolvency or proceedings herein referred to
shall not be terminated, dismissed or adjudicated in
favor of such party within ninety (90) days from the
institution thereof, then and in any or either of said
events, there shall be deemed to be a breach of this
Lease.
17. Remedies on Default: Whenever an act of default shall
have occurred as herein set forth, the parties hereto agree
that the existence of the default shall be first declared to
exist by a panel of three (3) arbitrators as herein further
provided for in Article 24 before further action hereunder
shall be taken by the party not in default to impress its
remedies as herein set forth.
(a) Whenever Lessor shall be declared in default and such
fefault cannot be and/or is not remedied by Lessor
within a reasonable time (such reasonable time to be
determined in the same arbitration proceedings de-
claring an act of default to exist), Lessee shall be
given a reasonable time to relocate its operation
conducted on the premises and the Lessor shall pay all
costs and expenses of such relocation including the
difference between Lessee's present rental and any
increase in rental Lessee may have to pay for any
alternate, comparable facility for the unexpired
initial period of this Lease and all extensions
thereto, and this Lease shall terminate.
(b) Whenever Lessee shall be declared in default and such
default is not remedied by Lessee within a reasonable
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u;ate: <:./<:.0/U1 lIme: !::>:l~)::"-lO t-'M F';,W~ 16 oj 21
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any State or Pederal Law be instituteo by or against
one of the parties, or if the real or personal
property of one of the parties shall be levied upon
and sold by any Sheriff, Marshall or Constable, and
such insolvency or proceedings herein referred to
shall not be terminated, dismissed or adjudicated in
favor of such party within ninety (90) days from the
institution thereof, then and in any or either of said
events, there shall be deemed to be a breach of this
Lease.
ill,,,,
17. Remedies on Default: Whenever an act of default shall
have occurred as herein set forth, the parties hereto agree
that the existence of the default shall be first declared to
exist by a panel of three (3) arbitrators as herein further
provided for in Article 24 before further action hereunder
shall be taken by the party not in default to impress its
remedies as herein set forth.
(a) Whenever Lessor shall be declared in default and such
fefault cannot be and/or is not remedied by Lessor
within a reasonable time (such reasonable time to be
determined in the same arbitration proceedings de-
claring an act of default to exist), Lessee shall be
given a reasonable time to relocate its operation
conducted on the premises and the Lessor shall pay all
costs and expenses of such relocation including the
difference between Lessee's present rental and any
increase in rental Lessee may have to pay for any
alternate, comparable facility for the unexpired
initial period of this Lease and all extensions
thereto, and this Lease shall terminate.
(b) Whenever Lessee shall be declared in default and such
default is not remedied by Lessee within a reasonable
time (such reasonable time to be determined in the
same arbitration proceedings declaring an act of de-
Fault to exist):
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(1) Lessor shall have the immediate
right thereafter to the premises and
to declare due the entire rental for
the unexpired balance of the term of
this Lease together with all costs,
charges and expenses herein agreed
to be paid by Lessee, including the
five (5%) percent chargeable by Act
of Assembly, and together with any
unpaid rental, charge, cost or ex-
pense agreed to be paid by the
Lessee. All such sums shall be
collectible by further proceedings
before arbitrators or in a court of
competent Jurisdiction in law or in
equity;
(ii) Lessee hereby irrevocably con-
stitutes and appoints Lessor
Lessee's agent to collect the rents
and other charges paid by any as-
~~ignee or sublessee of Lessee.
These shall be applied to the rent
or other charges due or already paid
hereunder by Lessee to Lessor with-
out affecting Lessee's obligation to
pay any unpaid balance of rent or
other charges due hereunder;
(iii) Lessor as Lessee's agent may lease
said premises or any part or parts
thereof to such other person or
persons which may in Lessor's dis-
cretion seem best in which case
rents or other charges paid by such
other Lessee shall be applied to the
rent or other charges due or already
paid hereunder by Lessee. Any
deficiency may be collected by
Lessor from Lessee by further pro-
ceedings instituted hereunder or
with a court of competant juris-
diction in law or in equity.
18. Remedies Cumulative: All of the remedies hereinbefore
qiven to either party and all rights and remedies given to it
by law and equity shall be cumulative and concurrent.
19. Notices All notices required to be given by the terms
of this Lease shall be as follows:
To Lessor:
Shuler & Shuler
15 Mountain View Drive
Enola, Pennsylvania
To Lessee:
Grinnell Fire Protection Systems
Company, Inc.
10 Dorrance Street
Providence, Rhode Island 02903
Attention: Secretary and
General Counsel
20. Lessee shall not assign, mortgage or pledge this Lease
or underlet or sublease the demised premises, or any part
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(iii)
Lessor as Lessee's agent may lease
said premises or any part or parts
thereof to such other person or
persons which may in Lessor's dis-
cretion seem best in which case
rents or other charges paid by such
other Lessee shall be applied to the
rent or other charges due or already
paid hereunder by Lessee. Any
deficiency may be collected by
Les.or from Lessee by further pro-
ceedings instituted hereunder or
with a court of competant juris-
diction in law or in equity.
18. Remedies Cumulative: All of the remedies hereinbefore
given to either party and all rights and remedies given to it
by law and equity shall be cumulative and concurrent.
19. Notices All notices required to be given by the terms
of this Lease shall be as follows:
To Lessor:
Shuler 11: Shuler
15 Mountain View Drive
Enola, Pennsylvania
To Lessee:
Grinnell Fire Protection Systems
Company, Inc.
10 Dorrance Street
Providence, Rhode Island 02903
Attention: Secretary and
General Counsel
20. Lessee shall not assign, mortgage or pledge this Lease
or underlet or sublease the demised premises, or any part
thereof without the written consent of Lessor, which consent
will not be unreasonably withheld; nor shall any assignee or
sublessee assign, mortgage or pledge this Lease or such sub-
lease, without an additional written consent by Lessor, and
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without such consent no such assignment, mortgage or pledge
shall be valid. In the event the Lessor's written consent is
given to an assignment, subletting or underletting, the Lessee
shall, nevertheless, remain liable to perform all covenants and
conditions thereto and to guarantee such performance by his
assignee, subtenant or undertenant.
21. Lease Contains All Agreements: It is expressly under-
stood and agreed by and between the parties hereto that this
Lease sets forth all the promises, agreements, conditions and
understandings between Lessor and Lessee relative to the
demised premises, and th~t there are no promises, agreements,
conditions or understand~ngs, either oral or written, between
them other than are herein set forth. It is further understood
and agreed that, except as herein otherwise provided, no sub-
sequent alteration, amendment, change or addition to this Lease
shall be binding upon Lessor or Lessee unless reduced to
writing and signed by them.
22. Insurance: Less~ agrees to maintain at all times
during the term of this Lease fire insurance with extended
coverage in .'company or companies licensed by the Commonwealth
of Pennsylvania to the replacement value of said leased
structure, fixtures and equipment naming Lessor as an insured
and payable to the Lessor. Lessee shall pay the premiums on
such insurance, which said payments shall be made to Lessor
within fifteen (15) days after presentation to Lessee of a
premium notice, and if not so paid, said amount shall be deemed
additional rent and shall be added to the monthly rent install-
ment next due. Insurance premiums at the beginning and end of
the term of this Lease shall be apportioned. Lessee shall at
all times maintain liability ins~rance naming Lessor as an
insured with insured limitations of at least $200,000/$500,000
in case of bodily injury or death and at least $100,000 in case
of property damage, which insurance shall be issued by a
company or companies approved by Lessor and licensed as afore-
said and a certificate of such insurance shall indicate that
the insurance policies represented hereby cannot be canceled
without ten (10) days prior written notice to the holder of the
certificate.
23. Arbitration: Any controversy or claim arising out of
or relating to this contract, or the breach thereof, shall be
settled by arbitration in accordance with the rules of the
American Arbitration Association, and judgment upon the award
rendered by the arbitrator(s) may be entered in any court
having jurisdiction thereof.
(a) In the event such controversy or claim arising out of
or relating to this contract shall arise, either party
may submit such controversy or claim to arbitration as
herein set out;
(b) Whenever any such controversy or claim so submitted,
shall involve an amount less than Ten Thousand
($10,00~.00) Dollars, it shall be determined by a
single arbitrator; Whenever any such controversy or
claim involves an amount of Ten Thousand ($10,000.00)
Dollars, or more, it shall be sumbitted to a panel of
three (3) arbitrators.
24. Mutual Release - Landlord and Tenant: In consideration
of their aforementioned promises, each party hereto hereby
waives and forfeits any right of action that it may later ac-
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., . rne rerm or <nls Lease shall be apportioned. Lessee shall at
all times maintain liability insurance naming Lessor as an
insured with insured limitations of at least $200,000/$500,000
in case of bodily injury or death and at least $100,000 in case
of property damage, which insurance shall be issued by a
company or companies approved by Lessor and licensed as afore-
said and a certificate of such insurance shall indicate that
the insurance policies represented hereby cannot be canceled
without ten (10) days prior written notice to the holder of the
certificate.
23. Arbitration: Any controversy or claim arising out of
or relating to this contract, or the breach thereof, shall be
settled by arbitration in accordance with the rules of the
American Arbitration Association, and judgment upon the award
rendered by the arbitrator(s) may be entered in any court
having jurisdiction thereof.
(a) In the event such controversy or claim arising out of
or relating to this contract shall arise, either party
may ~ubmit such controversy or claim to arbitration as
herein set out;
(b) Whenever any such controversy or claim so submitted,
shall involve an amount less than Ten Thousand
($10,000.00) Dollars, it shall be determined by a
single arbitrator. Whenever any such controversy or
claim involves an amount of Ten Thousand ($10,000.00)
Dollars, or more, it shall be sumbitted to a panel of
three (3) arbitrators.
24. Mutual Release - Landlord and Tenant: In consideration
of their aforementioned promises, each party hereto hereby
waives and forfeits any right of action that it may later ac-
Quire against the other of the parties of this Agreement for
any and all loss of or damage to any of its property located
within or upon, or constituting a part of, the premises leased
to the Lessee hereunder, which loss or damage is caused by
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fire, any of the extended coverage hazards, or vandalism and
malicious mischief. Inasmuch as these mutual waivers will
preclude the assignment of any aforesaid claim by way of sub-
rogation (or otherwise) to an insurance company (or any other
person), each party hereto hereby agrees immediately to give to
each insurance company which has issued to it policies of fire
and extended coverage insurance. written notice of the terms of
said mutual waivers, and to have said insurance policies
properly endorsed, if necessary, to prevent the invalidation of
said insurance coverages by reason of said 'waivers.
25. Headings No Part of Lease: Any headings preceding the
text of the several paragraphs and subparagraphs are inserted
solely for convenience or reference and shall not constitute a
part of this Lease nor shall they affect its meaning, construc-
tion or effect.
26. This Lease consists of ten (10) typewritten pages.
IN WITNESS WHEREOF, the parties hereto have executed these
presents the day and year first above written, and intend to be
legally bound thereby.
ATTEST:
SHULER & SHULER
By
ATTEST:
GRINNELL FIRE PROTECTIUN
SYSTEMS COMPANY, INC.
Secretary
By
Vice President
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CERTIFICATE OF SERVICE
I, JOSEPH A. KLEIN, ESQUIRE, attorney for Condemnee, do hereby eertify that on this
date I served the foregoing PRELIMINARY OBJECTIONS TO DECLARATION OF TAKING
by having plaeed a tme and eorrect eopy of same in the United States Mail, First Class, postage
prepaid, deposited at Harrisburg, Pennsylvania, addressed to eounsel for PennDOT as follows:
Bradley L Mallory
SecretalY
Commonwealth of Pennsylvania
Department of Transportation
The Keystone Building
400 NOlih Street, 9'" Floor
Harrisburg, PA 17101
Joseph A. Klein, P.c.
A. lein, Esquire
o. 00782
orth Third Street, 7th Floor
Harrisburg, P A 1710 I
(717) 233-0132
Attorney for Owner/Condemnee
Date: 3(~lO)
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MAR 1 5 20yV
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF RIGHT OF WAY, FOR STATE
ROUTE 0015, SECTION 004 R1W, IN THE
BOROUGH OF CAMP HILL AND THE
TOWNSHIPS OF HAMPDEN AND LOWER
ALLEN
: No. 01-587 CIVIL
CLAIM NO. 21001210000
: EMINENT DOMAIN ROCEEDINGS-IN REM
ORDER OF COURT
AND NOW, \/1.1 V t.. t, I' I 2- 6 D ( I upon presentation of the
within Petition, it is hereby ordered and directed that the sum
of $1,650.00 representing the amount of just compensation
estimated by the Commonwealth to be due the condemnee(s) and the
Commonwealth's pro-rata share of taxes on the subject property
shown on the attached Proposed Schedule of Distribution, be paid
into Court, to be held in an interest bearing account until
further Order of Court directing payment of said amount to the
said condemnee(s) and/or person(s) entitled thereto pursuant to
Sections 407, 521 and/or 522, of the Eminent Domain Code, 26 P.S.
~~~1-407, 1-521 and/or 1-522, as they may apply.
BY THE COURT:
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF RIGHT OF WAY, FOR STATE
ROUTE 0015, SECTION 004 R1W, IN THE
BOROUGH OF CAMP HILL AND THE
TOWNSHIPS OF HAMPDEN AND LOWER
ALLEN
: No. 01-587 CIVIL
CLAIM NO. 21001210000
EMINENT DOMAIN ROCEEDINGS-IN REM
PETITION TO DEPOSIT ESTIMATED
JUST COMPENSATION
TO THE HONORABLE, THE JUDGES OF THE SAID COURT:
1. The Department of Transportation is a Department of the
Commonwealth of pennsylvania, with offices at P.O. Box 8212,
Harrisburg, PA. 17105-8212.
2. On January 29, 2001 a Declaration of Taking was filed to
the above captioned term and number by the Secretary of
Transportation.
3. Although the condemnee{s) listed on the attached
Proposed Schedule of Distribution was offered the full amount of
the Commonwealth's estimated just compensation as payment pro-
tanto of their right of way damage claim, without prejudice to
their right to proceed to a final determination of their just
compensation, the Commonwealth has been unable to make payment
because claimant is unlocatable.
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4. A draft in the total amount of just compensation due the
condemnee(s), as estimated by the Commonwealth, and the
Commonwealth's pro-rata share of taxes on the subject property
made payable to the prothonotary of this Court is attached
hereto.
5. I, Stuart A. Liner, Assistant Counsel, do hereby depose,
swear, and affirm that I am authorized by and do hereby execute
this petition to Deposit Estimated Just Compensation on behalf of
the Commonwealth, Department of Transportation, and that the
averments contained and set forth herein are true and correct to
the best of my knowledge, information and belief, and are made
subject to the penalties provided in 18 Pa. C.S. ~4904, relating
to false swearing to authorities.
WHEREFORE, in order to assure possession of the condemnees'
property, if required, by your Petitioner to which it is entitled
under Section 407, of the Eminent Domain Code, 26 P.S. ~1-407,
your Petitioner prays that your Honorable Court direct payment of
the aforesaid estimated just compensation and the Commonwealth's
pro-rata share of the taxes on the subject property into Court,
to be held until further Order of Court directing payment of said
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amount to the said condemnee{s) and/or person{s) entitled thereto
pursuant to, Sections 407, 521 and/or 522, of the said Code, 26
P.S. ~~~1-407, 1-521 and/or 1-522, as they may apply.
Respectfully submitted,
BY J4,f4-:vf CI c;2,:-.~/,-
Stuart A. Liner
Assistant Counsel
ID No. 15290
Commonwealth of Pennsylvania
Department of Transportation
Office of Chief Counsel
P.O. Box 8212
Harrisburg, Pennsylvania 17105-8212
Telephone (717)787-3128
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REMIS Ko. 080063
RW467A (07/99) @ Countv rtIMRRRI.ANIl
PROPOSED SCHEDULE OF DISTRIBUTION Route- Sec. 0581-004
Clefm No. 2100121??oo
PST"'" No. W
NAME(S,a ADDlIESS(ES) OF ESllMATlD JUST ENCUMBRANCES, TAXES, ETC. t.lET DUE TO
CONIlEMNEE{SIl COMPENSA1l0N DATE OF PLACE OF RECORD ACTUAL CONDIMNEE
lOCATION OF PIIOPERTY(lES) TYPE RECORD RECOllD NAME OF UENOR AMOUNT DUE AMOUNT DUE
Wau..BILT HOMes. IIIlC E.I.C. .
$1.650.00
UNLOCATABLE
STA 14 + 800, NOR1lISIDE OF Comrnnnwealth
SR 0581. SECflOIll 004 I'r<>-Rata Share
Real Eslale T""es
REMAlNDBIl. Of'
DEED BOOK I4-D. PAGB 180 SI!.!!!!
To"" $1 6~nnD
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Subject 10 possible unllened, oopaid IDI1Dlripal claims and Caxes.
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF RIGHT OF WAY, FOR STATE
ROUTE 0015, SECTION 004 R/W, IN THE
BOROUGH OF CAMP HILL AND THE
TOWNSHIPS OF HAMPDEN AND LOWER
ALLEN
: No. 01-587 CIVIL
CLAIM NO. 21001210000
EMINENT DOMAIN ROCEEDINGS-IN REM
,
SWORN STATEMENT AS TO NOTICE OF
PRESENTATION OF PETITION
TO DEPOSIT ESTIMATED
JUST COMPENSATION
I, Stuart A. Liner, Assistant Counsel, do hereby depose,
swear, and affirm that I am authorized by and do hereby execute
this sworn statement on behalf of the Commonwealth of
Pennsylvania, Department of Transportation, and that the
statements contained and set forth herein are true and correct to
the best of my knowledge, information and belief, and are made
subject to the penalties provided by 18 Pa. C.S. ~4909, relating
to false swearing to authorities.
Notice was posted on the property January 30, 2001 and
notice was published February 5, 2001 on the subject property as
the partie(s) listed on the attached Schedule, who are all of the
parties in interest whose whereabouts are unknown to the
condemnor, to the effect that a petition to Deposit
Estimated Just Compensation to the above term and number would be
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presented to the Court of Common Pleas of the above county after
March 6, 2001.
Copies of the said petition and proposed Schedule of
Distribution pertaining to the particular compensation in which
each was interested are attached to the said notices.
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Stuart A. Liner
Assistant Counsel
ID No. 15290
Commonwealth of pennsylvania
Department of Transportation
Office of Chief Counsel
P.O. Box 8212
Harrisburg, pennsylvania 17105-8212
717-787-3128
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CERTIFIED MAIL
COUNTY - Cumberland
S.R. 0581, Section 004
CLAIM NO. 21001200000
FILED TO: NO. 01-587 civil
SCHEDULE OF PARTIES NOTIFIED
OF PRESENTATION OF
PETITION TO DEPOSIT ESTIMATED
JUST COMPENSATION
NAMES AND ADDRESSES
DATE OF SERVICE OF CERTIFIED MAIL
Welbilt Homes, Inc.
Address Unknown
Posted on January 30, 2001 and
Published on February 5, 2001.
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CUI,~r!,tJV,ND couNT'!
PENNSYl'JANIA
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF RIGHT OF WAY, FOR STATE
ROUTE 0015, SECTION 004 R/W, IN THE
BOROUGH OF CAMP HILL AND THE
TOWNSHIPS OF HAMPDEN AND LOWER
ALLEN
No. 01-587 CNIL
CLAIM NO. 21001210000
EMINENT DOMAIN ROCEEDINGS-IN REM
SWORN STATEMENT AS TO NOTICE OF
PRESENTATION OF PETITION
TO DEPOSIT ESTIMATED
JUST COMPENSATION
I, Stuart A. Liner, Assistant Counsel, do hereby depose,
swear, and affirm that I am authorized by and do hereby execute
this sworn statement on behalf of the Commonwealth of
Pennsylvania, Department of Transportation, and that the
statements contained and set forth herein are true and correct to
the best of my knowledge, information and belief, and are made
subject to the penalties provided by 18 Pa. C.S. ~4909, relating
to false swearing to authorities.
Notice was posted on the property January 30, 2001 and
notice was published February 5, 2001 on the subject property as
the partie(s) listed on the attached Schedule, who are all of the
parties in interest whose whereabouts are unknown to the
condemnor, to the effect that a petition to Deposit
Estimated Just Compensation to the above term and number would be
..
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presented to the Court of Common Pleas of the above county after
March 6, 2001.
Copies of the said petition and proposed Schedule of
Distribution pertaining to the particular compensation in which
each was interested are attached to the said notices.
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Stuart A. Liner
Assistant Counsel
ID No. 15290
Commonwealth of Pennsylvania
Department of Transportation
Office of Chief Counsel
P.O. Box 8212
Harrisburg, Pennsylvania 17105-8212
717-787-3128
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CERTIFIED MAIL
COUNTY - Cumberland
S.R. 0581, Section 004
CLAIM NO. 21001200000
FILED TO: NO. 01-587 Civil
SCHEDULE OF PARTIES NOTIFIED
OF PRESENTATION OF
PETITION TO DEPOSIT ESTIMATED
JUST COMPENSATION
NAMES AND ADDRESSES
DATE OF SERVICE OF CERTIFIED MAIL
Welbilt Homes, Inc.
Address Unknown
Posted on January 30, 2001 and
Published on February 5, 2001.
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COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
OFFICE OF CHIEF COUNSEL
Christopher J. Clements, Assistant Counsel in-Charge
Right of Way Section
Supreme Court LD. #44699
P.O. Box 8212
HARRISBURG, PENNSYL VANIA 17105-8212
(717) 787-3128
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION
OF RIGHT OF WAY FOR S.R. 0581,
SECTION 004 R1W, IN THE BOROUGH OF
CAMP HILL AND THE TOWNSHIPS OF
HAMPDEN AND LOWER ALLEN
HAMPDEN INDUSTRIAL DEVELOPMENT
AUTHORITY and
MICKEY C. SHULER,
Plaintiffs
v.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Defendant
PRAECIPE
TO THE PROTHONOTARY:
CIVIL ACTION -- LAW
No. 01-587
EMINENT DOMAIN
PROCEEDINGS -- IN REM
Kindly enter my appearance on behalf of the condemnor, Commonwealth of
Pennsylvania, Department of Transportation, the defendant in the above-captioned matter.
By:
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Attorney for the Defendant
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONPEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTME~ OF TRANSPORTATION
OF RIGHT OF WAY FOR S.R. 0581,
SECTION 004 R/W, IN THE BOROUGH OF
CAMP HILL.AND THE TOWNSHIPS OF
. HAMPDEN AND LOWER ALLEN
CIVIL ACTION -- LAW
HAMPDEN INDUSTRIAL DEVELOPMENT
AUTHORITY and
MICKEY C. SHULER,
No. 01-587
Plaintiffs
v.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Defendant
EMINENT DOMAIN
PROCEEDINGS -- IN REM
CERTIFICATE OF SERVICE
I certify that I am serving the attached Praecipe for Entry of Appearance upon the person
and in the manner as set forth below, which service satisfies the requirements ofPa.R.C.P. 440:
BY FIRST CLASS MAIL:
Mark S. Silver, Esquire
Post Office Box 1152
Harrisburg, PA 17180
Respectfully submitted,
Attorney for the Defendant
Dated: 27 April 2001
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COMMONWEALTIl, QF PENNSYLVANIA
DEPARTMeNT!loF rllANSPORTATION
OFFICE OFClfIEF €OUNSEL
By: Christop~er.l Clements
Assistant i'rounsel in-Charge
Supreme (:ourt LD.# 44699
P.O. Box 8212
Harrisburg, fA 17105-8212
(717) 787-3128
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF RIGHT-OF-WAY FOR S.R. 0581,
SECTION 004 R/W, IN THE BOROUGH OF
CAMP HILL AND THE TOWNSHIPS OF
HAMPDEN AND LOWER ALLEN
CNIL ACTION -- LAW
MICKEY C. SHULER,
Condemnee
No. 01-587 CIVIL
v,
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
EMINENT DOMAIN
PROCEEDINGS--IN REM
Condemnor
ANSWER OF THE DEFENDANT TO PRELIMINARY
OBJECTIONS FILED TO THE DECLARATION OF TAKING
AND NOW, this 19th day of July, 2001, the Commonwealth of Pennsylvania, Department
of Transportation, condemnor, by its attorney, Christopher J. Clements, Assistant Counsel in-
Charge, Right of Way Section, respectfully represents as follows:
1
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1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted. By way of further reply, this language is from the Administrative Code
of 1929, as amended, 71 P.S. ~513(e), which is cited at para. 3 of the declaration of taking as
authority for the within condemnation action. See Exhibit I, at paras. 3, 5.
5. Admitted. By way of further reply, the recorded declaration oftaking contains a
Schedule of Property Condemned that, in turn, references a specific sheet of a plan of
condemnation recorded in Cumberland County. The within condemnation is recorded in Cabinet
3, Drawer 1, Page 134, Sheet 17. A reduced and color-coded copy of Sheet 17 is attached hereto
and made a part hereof as Exhibit 2. The recorded plan is further specifically cross-referenced
within the declaration of taking. Exhibit 1, at para. 4.
6. Denied. The declaration of taking acquires right of way in fee simple and in
temporary construction easement (for access during construction) for a project classified under
federa11aw as a "Type II highway traffic noise abatement" project. 23 CFR Part 772, ~772.5(i).
Type II highway traffic noise abatement projects relate to existing facilities such as S.R. 0581 (a
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four-lane, limited access highway) at the location abutting condemnee's property. The
declaration of taking filed by the condemnor cites generally to Section 513(e) of the
Administrative Code of 1929, as amended, 71 P.S. ~513(e), as authority for the within
condemnation action, with the statutory term "transportation purposes" specifically set forth at
para. 5 of the declaration. Exhibit 1. Acquisitions for Type II highway traffic noise abatement
. projects are authorized pursuant to Section 513( e) as both acquisitions for valid transportation
purposes and as acquisitions ofland abutting an existing highway for the purpose of mitigating
adverse affects on other land that has been adversely affected by reason of its proximity to such
highway. 71 P.S. ~~513(e)(I), (2)(ii). It is well-settled law in this Commonwealth that the term
"transportation purposes" is broad enough to include transportation related activities that are
designed as an integral part of the highway. Miller v. Deoartment of Transportation, 498 A.2d
1370, 1374 (Pa.Cmwlth., 1985)(emphasis in original)(acquisition to merge title for resale to
provide public parking to mitigate surface parking lost to a transportation project.) As an impact
mitigation measure pursuant to Section 513( e )(2)(ii), the portion of the sound wall to be
constructed at the location of condemnee's property, known as "Sound Barrier Wall C2", will
provide noise mitigation to approximately 50 residences in Camp Hill Borough between 19th
Street and 31't Street north ofS.R. 0581. See Exhibit 3, Design Report at pp. 8-9.
7. Denied. Sheet 17 of the recorded right of way plan of acquisition, referred to in
para. 4 of the declaration of taking and further cross-referenced on the Schedule of Property
Condemned which is attached and recorded along with the declaration, provides the following
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plan note as to the purpose and duration of the temporary construction easement:
TEMPORARY CONSTRUCTION EASEMENT: AN AREA(S) REQUIRED UNTIL
THE CONSTRUCTION OR WORK INDICATED BY THE PLAN IS COMPLETED.
UNLESS SOONER REVERTED IN WRITING BY THE DEPARTMENT OF
TRANSPORTATION.
Exhibit 2.
8. Denied. The amount of property required in fee simple, .153 acres, as well as the
property requireg for the temporary construction easement for construction access, .188 acres, is
the minimum amount of property required in order to construct the project as designed, to wit,
the installation of Sound Barrier Wall C2 that, as a retrofit to an existing limited-access highway,
constitutes both a valid transportation purpose and a valid acquisition of land abutting an existing
highway for the purpose of mitigating adverse affects on other land that has been adversely
affected by reason of its proximity to such highway. See Exhibit 3, Design Report at pp. 8-9.
9. Denied. The condemnee could not, prior to the taking and as unaffected thereby,
"use all of the land lying between the right of way line for PennDOT's Route 581 and Owner's
office building and warehouse in order to back said vehicles in and turn them around for loading
and unloading merchandise and material located in the aforesaid leased office building and
warehouse," as it is physically impossible that all of this land could be put to said purpose. Only
the paved areas in this referenced area could be put to said purposes. As ofthe date ofthe taking,
January 29,2001, the majority of the area between the northern edge of condemnor's legal right
of way line for S.R. 0581 and the southern edge of the paved area of condemnee' s property
4
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constitutes a steep embankment overgrown with thick vegetation. This is the area of the fee
taking. The area is also encumbered by a slope easement totaling .077 acres that is already
owned by the condemnor and not being used in any way by the condemnee. The project is
specifically designed at this location so that the sound barrier can be placed at the top of the slope
at-grade with the highway and in the condemnor's existing legal right of way. See Exhibit 2,
Right of Way Plan Sheet 17. In order to do this, a retaining wall, with its required subsurface
foundation, must be constructed in the area of required right of way due to the steep, pre-existing
topography. The retaining wall will be placed immediately adjacent to the condemnor's existing
legal limit of slope easement. The area after construction immediately to the north of the
finished retaining wall will be excavated and leveled-off so as to constitute a flat buffer-area
between the retaining wall and the southern edge of condemnee's paved driveway, storage and
parking area.
10. Denied. The condemnor's answer to para. 9, above, is incorporated byreference
herein and made a part hereof. By way of further reply, the temporary construction easement is
specifically for access (TCE-access) to the site and is specifically delineated on Sheet 17 of the
recorded right of way plan incorporated by reference into the declaration of taking. See Exhibit 2
(area in yellow). The use of the TCE-access area by the condemnor is foraccess as necessary
and until construction or work indicated by the plan is completed.
11. Admitted.
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12. Denied. The condemnor's answers to paras. 9 and 10, above, are incorporated by
reference herein and made a part hereof. It is specifically denied that this project will
substantially interfere with either the temporary or permanent utilization of the condemnee's
property. The condemnor's answer to para. 8, above, is also incorporated by reference herein and
made a part hereof. The project has been designed consistent with sound and generally accepted
professional engineering practices, methodologies and principles in such a way so as to meet the
project needs while at the same time minimizing the impact to abutting property owners,
including the condemnee. It is therefore specifically denied that the condemnor has acted in a
manner that is arbitrary and capricious in the exercise of its administrative discretion for the
engineering design of this project. Finally, to the extent that this paragraph alleges an impact to
the "economic viability of said structure causing a substantial loss of fair market value to
Condemnee's buildings and remaining land," said objection improperly refers to matters of just
compensation which are beyond the scope of permissible preliminary objections to a declaration
oftaking. Accordingly, in this regard, this objection is without merit, beyond the scope of the
Eminent Domain Code and must be dismissed. 26 P.S. ~1-406(a); Township ofChesterv.
Deoartment of Transportation, 339 A.2d 892 (Pa.Cmwlth., 1975); In the Matter ofProceedinl! bv
Cumberland-Dauphin-Harrisburl! Transit Authority for the Condemnation of the Property of
Alan F. Spurl!in. (Cumberland County No. 97-1465, Civil Term, filed October 21,1998, as per
Bayley, J.), at 4-5.
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13. Denied. This paragraph contains a misstatement and misapplication of the law.
The condemnor has yet to file a declaration of just compensation seeking possession of the
condemned premises pursuant to Section 1-407 the Eminent Domain Code, 26 P.S. ~1-407, but,
instead, has only offered the condemnee a settlement in the amount of $1 0,500.00 for a portion of
condemnee's property prior to the filing of the declaration of taking. Allegations of "palpable
bad faith" and fraud in such an offer to settle at this stage in the proceedings are improper and
beyond the scope of preliminary objections under the Eminent Domain Code. Accordingly, in
this regard, this objection is without merit, beyond the scope of the Eminent Domain Code and
must be dismissed. 26 P.S. ~ 1-406(a); Township of Chester v. Deoartment of Transportation,
339 A.2d 892 (pa.Cmwlth., 1975); In the Matter ofProceedinl! bv Cumberland-Dauphin-
Harrisburl! Transit Authority for the Condemnation of the Property of Alan F. Spurl!in,
(Cumberland County No. 97-1465, Civil Term, filed October 21,1998, as per Bayley, J.), at 4-5;
see also In Re: CondemnationofllO Washinl!ton Street. et ai, 136 Montg. Co. L.R. 176,212
(1999); In Re: Condemnation bv the Commonwealth ofPennsvlvania. Deoartment of
Transportation. of Right ofWav for State Route 33. Section 002. a Limited Access Hil!hwav in
the Township of Bethlehem (Chrin). (Northampton County No. 1999-CM-3503, Civil Div., filed
April 14, 2000, as per Moran, J.), at 7-8. The Common Pleas Court decisions in Spurl!in and
Chrin are attached hereto and made apart hereof as Exhibits 4 &- 5, respectively.
14. Denied. The condemnor's answers to paras. 1-13, above, are incorporated by
reference herein and made a part hereof.
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15. Denied. The condemnor's answers to paras. 1-14, above, are incorporated by
reference herein and made a part hereof. By way of further reply, the project has been designed
consistent with sound and generally accepted professional engineering practices, methodologies
and principles in such a way so as to meet the project needs while at the same time minimizing
the impact to abutting property owners, including the condemnee. It is therefore specifically
denied that the condemnor has acted in a manner that is arbitrary and capricious in the exercise of
its administrative discretion for the engineering design of this project, and it is further
specifically denied that the amount of property acquired from the condemnee is excessive.
16. Denied. The condemnor is precluded from amending the preliminary objections
and has waived any and all preliminary objections that it has failed to raise herein. 26 P .S. ~ 1-
406( c)( all preliminary objections shall be raised at onetime and in one pleading).
WHEREFORE, for all of the foregoing reasons, the Commonwealth of Pennsylvania,
Department of Transportation, condemnor, respectfully requests this Honorable Court to dismiss
the preliminary objections filed by the condemnee to the declaration of taking filed in the within
matter on January 29.2001.
Respectfully submitted,
Attorney for the Condemnor
8
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION
OF RIGHT OF WAY FOR S.R. 0581,
SECTION 004 R/W, IN THE BOROUGH OF
CAMP HILL AND THE TOWNSHIPS OF
HAMPDEN AND LOWER ALLEN
MICKEY C. SHULER,
Plaintiff
v.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Defendant
CNIL ACTION -- LAW
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No. 01-587
EMINENT DOMAIN
PROCEEDINGS -- IN REM
CERTIFICATE OF SERVICE
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I certifY that I am serving the attached Answer of the Defendant to Preliminary Objections
Filed to the Declaration of Taking upon the person and in the manner as set forth below, which
service satisfies the requirements ofPa.R.C.P. 440:
BY FIRST CLASS MAIL:
Joseph A. Klein, Esquire
Post Office Box 1152
Harrisburg, PA 17180
Dated: 19 July 2001
Respectfully submitted,
Attorney for the Defendant
,.[;
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
. . -
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION, OF THE
RIGHT-OF-WAY FOR STATE
ROUTE 0581, SECTION 004R/W, IN
THE BOROUGH OF CAMP HILL
AND THE TOWNSHIPS OF
HAMPDEN AND LOWER ALLEN
NO. LJ/- .S'$? 7 ~
EMINENT DOMAIN PROCEEDING
IN REM
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This Declaration of Taking, based on the provisions of Article N, Sect!!i~02~f
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the Eminent Domain Code, Act of June 22, 1964, P. L. 84,26 P. S. 1-402, as ar6endeH,
DECLARATION OF TAKING
TO THE HONORABLE, THE JUDGES OF THE SAID COURT:
respectfully represents that:
1. The Condemnor is the Commonwealth of Pennsylvania, Department of
Transportation, acting through the Secretary of Transportation.
2. The address of the Condemnor is:
Commonwealth of Pennsylvania
Department of Transportation
Office of Chief Counsel
P.O. Box 8212
Harrisburg, PA 17105-8212
3. The Department of Transportation is authorized by the provisions of
Section 2003(e) of the Administrative Code of 1929, P. L. 177, 71 P. S. 513(e), as
amended, to acquire by gift, purchase, condemnation or otherwise, land in fee simple or
such other estate or interest as it shall determine, in the name of the Commonwealth for
all transportation purposes.
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4. The within condemnation has been authorized by a plan signed by the
Secretary of Transportation on Septembe~ -21, 2000, entitled "Drawings AuthoTIzing
Acquisition of Right-of-Way for State Route 0581, Section 004RIW in Cumberland
County", a copy of which plan was filed in the County Recorder's Office in Cabinet 3,
Drawer I at Page 134 on December 14, 2000.
5. The purpose of the within condemnation is to acqurre property for
transportation purposes.
6. A Schedule of Property Condemned identifying and specifying the
location of the property hereby condemned is attached hereto and made a part hereof.
7. Plans showing the property hereby condemned may be inspected in the
Recorder's Office of the aforesaid County at the places indicated on the attached
Schedule of Property Condemned or, if not shown thereon, on the day of the filing of this
document being lodged for record or filed in said Recorder's Offices, where they may be
inspected.
8. The nature of the title hereby condemned is fee simple and temporary
construction easements.
9. In the event there are recoverable minerals (including gas and oil) within
the areas, if any, hereby condemned in fee simple, the mineral rights (including rights to
gas and oil) in those areas are hereby excepted and reserved from this condemnation,
provided however, that the right of support of the areas condemned is included within the
scope of this condemnation, and no access from the surface of such areas for removal
purposes will be allowed without permission from the Commonwealth.
10. The payment of just compensation ill this matter IS secured by the
Commonwealth's power of taxation.
11. I, Gary C. Fawver, P. E., Chief, Right-of-Way and Utilities Division, of
the Department of Transportation, do hereby depose, swear and affirm that I am
authorized by and do hereby execute this Declaration of Taking on behalf of the
Commonwealth of Pennsylvania, Department of Transportation, and that the averments
contained and set forth herein are true and correct to the best of my knowledge,
information and belief, and are made subject to penalties provided in 18 Pa. C. S. ~4904,
relating to false swearing to authorities.
WHEREFORE, fee simple title and ternporary construction easements are hereby
condemned from the properties identified on the attached Schedule of Property
Condemned, as indicated on the plans referenced in paragraph 7 above.
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Chief, Right-of-Way and Utilities Division
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Page 10f 1
RW437 (10/99)
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
SCHEDULE OF PROPERTY CONDEMNED
(Declaration of Taking)
'TYPE OF DESCRIPTION
D- Deed Description
P- Plan lodged for recording with Notice
of Condemnation
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REMIS Proi. No. 080063
Countv Cumberland
Fed. Proi. No. 100% State
Municipalities Camp Hill, Lemoyne,
Hampden, Lower Allen
Route-Sec. 0581-004
R- Plan now recorded in Recorder's Office
Attached
Nanle, Mailing Address, Property Exhibit
Parcel Claim Interest of Condemnees, and Number , Plan (if any)
Type of
No, Number Location of Condemned Property (if any) Description Recorded in
11 21000720000 David T. Latsha nla R Cabinet 3. Drawer I,
1141 Columbus Ave. Page 134. sheets 12 &
Lemoyne, PA 17043 16
Location: Deed Book 174, Page 975
52 21000890000 Lawrence Robert Jameson and Jeannie Y. nla R Cabinet 3, Drawer I,
Jameson, h/w Page 134, sheets 7 & 14
9 Oakwood Circle
Camp Hill, PA 17011
Location: Deed Book U 28, Page 857
96 21001200000 Hampden Industrial Development nla R Cabinet 3, Drawer I,
Authority, A Subsisting Association Page 134, sheet 17
(owner)
William B. Boles, CEO
230 So. Sporting Hill Road
Mechanicaburg, P A 17055
Mickey C. Shuler (equitable owner)
332 Belle Vista Drive
Marysville. P A 17053
AS TfIEIR INTERESTS MAY APPEAR
Location: Deed Book M 30, Page 676
97 21001210000 WelbiltHomes, Inc. nla R Cabinet 3, Drawer I.
Owner Unlocateable Page 134, sheets II &
14
Location: Deed Book 14 D. Page 180
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RIGHT OF WAY CLAIM INFORMATION. .
COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION
STATE RTE. aSHI SEC. NO..a2f&:1t: CAUP HILL .BOHI2 CUUm:RI-ANn COUNTY
PA~CEL NO.. ,N _ "HEEl NO.. _ II _ rLAiM NO..
PROPERTY OWNER(S) HWPiYN tNot~THJU IYW1tJPAH"NT A1/iHnHIJ'Y
GRANTOR(S) .KJn J: MUU1il"ANO ~ ~ ~
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HA/ACRE
1.01.5./2.507
aa.r~tJ92
AREAS
DEED
CALCULATED
ADVERSES
LEGAL R/W
EFFECTLVE
TOTAL REO'D'
TOTAL RESLDUE
RESLDUE LT.
RESLDUE RT.
REOULRED AREA' HA/ACRE
RIGHT OF WAY O0G.7/1lI.H
TEMP.CONST. EASMT. oomAz 1118
DEED BOOK
PAGE
DATE OF DEED
DATE OF RECORD
CONSIDERATLON
L.R.S.STAMPS
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1.0/5/2.507
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VERLFICATION DATE 7/21AJtJ
DRAWN BY 09./11
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ON RETAINING WAll
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CURVE DATA
R/W Bl
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T "" 105.482m
L'" 210.708m~-
R '" 1746.J76m
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FILE NAME poreel_96_exhibit VIEW NAME PS5
fPLOT DATE 107/10/01
DISTRICT
8-0
COUNTY ROUTE SECTION SHEET
CUMBERLAND 0581 004R/W 17 OF 17
CAMP HILL BOROUGH
TEMPORARY CONSTRUCTION EASEMENT: AN AREA(S) REOUIRED UNTIL THE
CONSTRUCTION OR WORK INDICATED BY THE PLAN IS COMPLETED. UNLESS
SOONER REVERTED IN WRITING BY THE DEPARTMENT Of" TRANSPORTATION.
ALL PROPERTIES AR_E PLOTTED f"ROM OEEDS Of" RECORD, REC()ROED
SUBDIVISION OR LOT PLANS. OR FROM FIELD SURVEY. PROPERTY LINES WERE
SURVEYED ONLY WHEN DETERMINED NECESSARY BY THE PROFESSIONAL LAND
SURVEYOR RESPONSIBLE fOR THE PROJECT. PROPERTY LINES NOT
ESTABLISHED BY FIELD SURVEY WERE PLOTTED BASED ON EXISTING
TOPOGRAPHICAL f"EA TURES AND LIMITED FIELD DATA.
THIS PROPERTY PLAT IS NOT TO BE SUBSTITUTED f"OR A BOUNDARY SURVEY.
~ - REOUIRED RIGHT Of" WAY
REvISIONS BY DATE
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SURVEY BOOK: 5432
FiNAl BY
TRACED BY
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District 8-0. Cumberland County
PA 581
from t-83 to Sporting Hili Rd,
Subarea 2
ble 1:6000
Flight Date: December 3, 1998
t
P/Vpafed by: Boles, Smyth Asaoclaleslnc.
PHIPE Design Report
Noise Demo Study- Cumberland County
December 24, 2000
Page 9
Subarea 2
This area is along the north side of PA 581 in Camp Hill, between 19th and
31 st Streets. There is a large recreational area in the center of the
residential uses. The initial monitoring data (Sites 2A through 2D) indicated
that there are noise impacts in the eastern portion of this area. Following
public comments, a fifth monitoring site (Site 221) was added to confirm the
eastern limit of impacts. Nine additionai modeling sites were included in the
anaiysis. Overall, levels range from 58 to 75 dBA.
residences are expected to receive a reduction of 5 decibels or more, and
another 20 homes will have at least a 3-decibel reduction. Therefore, the
average cost will be about $10,000 per home receiving a benefit.
-,
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While the ievel at Site 2C is relatively high, this is not representative of the
impacts at Hoover Elementary School, which is better represented by Site
208. Monitoring was performed closer to the highway to avoid the influence
of activities on the school playground.
The recommended mitigation will begin near the eastern end of an existing
noise barrier along the recreational fields in the center of this Subarea, and
it will extend eastward to the west end of the bridge which crosses the
railroad tracks and the Gettysburg Pike (see Figure 3). It will have a length
of about 542 meters (1780 feet) with an average height of 3.8 meters (12.5
feet). To accommodate the new barrier, a long retaining wall will also be
required. The estimated cost of the noise wall alone is $525,000. Over 30
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IN THE MATTER OF PROCEEDING.
BY CUMBERLAND-DAUPHIN-
HARRISBURG TRANSIT AUTHORIIY
FOR THE CONDEMNATION OF THE
PROPERlY OF ALAN F. SPURGIN
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNIY, PENNSYLVANIA
97-1465 CIVIL TERM
I!'LRE: PRELIMINARY OBJECTIONS TO DECLARATION OF TAKING'
BEFORE BAYLEY. J. AND HESS. J.
OPINION AND ORDER OF COURT
BAYLEY, J., October 21,1998:.'
On December 30, 1996, the Cumberland-Dauphin-Harrisburg Transit Authority
(CAT) made a written offer to Alan F, Spurgin to purchase a property he owned for
.,
$52,000. Spurgin did not respond to the offer, CAT renewed its offer in writing on
February 21,1997. Again. Spurgin did not respond. On March 20,1997, CAT,
pursuant to the Eminent Domain Code, 26 P,S. S 1-101 et sea" at Section 1.402, filed
a Declaration of Taking of Spurgin's property for the purpose of constructing a bus
transportation transfer center, Spurgin filed preliminary objections to the taking,
Section 1-406 of the Eminent Domain Code provides:
(a) Within thirty days after being selVed with notice of condemnation,
the condemnee may file preliminary objections to the declaration of
taking, The court upon cause shown may extend the time for filing
preliminary objections, Preliminary objections shall be limited to and
shall be the exclusive method of challenging (1) the power of right to
the condemnor to appropriate the condemned property unless the same
has been previously adjudicated; (2) the sufficiency of the security; (3)
any other procedure followed by the condemnor; or (4) the declaration
of taking. Failure to raise these matters by preliminary objections shall
constitute a waiver thereof. (Emphasis added,)
Spurgin has obtained an appraisal for his property setting the market value at
$240,000. He maintains that he has established palpable bad faith on the part of CAT
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97-1465 CIVIL TERM
converge. The study identified Spurgin's vacant land as a potential site fO\". such a
transfer center, On September 19, 1995, CAT filed a declaration of taking of
Spurgin's land for a transfer center, CAT, upon discovering that it had procedurally
jeopardized its obtaining federal funding of the project, filed a. Declaration of
Relinquishment on March 19, 1996, pursuant to Section 1-408 of the Eminent Domain
Code.' On June 7, 1996, CAT learned that $100,000 in federal funding would be
made available for the purchase of vacant land for a transfer center, On August 15,
1996, CAT advised Spurgin that it was again going to condemn his property. CAT
obtained an appraisal of the market value of Spurgin's vacant land at $52,000 as of
September 20, 1996. Spurgin thereafter commenced construction of a building on
1, Although not required under the Eminent Domain Code of Pennsylvania,
federal law under which financing for the transportation center was to be provided
requires that CAT negotiate with a landowner in an effort to amicably acquire property
prior to initiating condemnation proceedings,
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97-1465 CIVIL TERM
his land. When CAT's $52,000 written offer to purchase the property was first
forwarded to Spurgin on December 30, 1996, CAT knew that a building was under
construction, The building was still under construction when the offer was renewed in
writing on February 21, 1997, The building was completed in March, 1997, the same
month that the declaration of taking was filed on March 20th. Spurgin's $240,000
appraisal is for his property as improved,
Spurgin cites In re: Condemnation by City of Philadelphia of Leasehold of
Airportels, Inc., 40 Pa, Commw. 409 (1979), in support of his preliminary objection to
the declaration of taking. His reliance on Alrportels is misplaced, In Airportels, the
Commonwealth Court of Pennsylvania held that when a condemnee proves by clear,
precise and indubitable evidence that the condemnor acted fraudulently or in
palpable bad faith in declaring its estimate of just compensation under Section 1-
407(b) of the Eminent Domain Code, then a trial court may set aside the condemnor's
declaration of estimated just compensation. See also Redevelopment Authority of
the City of Wilkes-Barre v, Serafin, 44 Pa. Commw. 463 (1979), Section 1-407 of
the Eminent Domain Code provides:
(a) 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, the amount of just compensation
as estimated by the condemnor, If a condemnee thereafter refuses to
deliver possession or permit right of entry, the prothonotary upon
praecipe of the condemnor shall issue a rule, returnable in five days
after service upon the condemnee, to show cause why a writ of
possession should not issue, upon which the court, unless preliminary
objections warranting delay are pending, may issue a writ of possession
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97-1465 CIVIL TERM
conditioned upon payment to the condemnee or into court of such
estimated just compensation and on such other terms as the court may
direct.
(b) If within sixty days from the filing of the declaration of taking,
the condemnor has not paId just compensation as provided in
~ubsection(a) of this ~ection, the condemnee may tender possesSion or
tight of entry in writing. and' the condemnor shall thereupon make
payment ofthe just compensation due such condemnee as estimated
l:lY the condemnor, If the condemnor fails to make such payment the
gourt,upon petition of the condemnee, may compel the condemnor to
file a declaration of estimated just compensation or, if the condemnor
fails or refuses to file such declaration, may at the cost of the
condemnor appoint an impartial expert appraiser to estimate such just
compensation, The court may, after hearing, enter judgment for the
amount of the estimated just compensation.
hi Airportels, the City of Philadelphia in an alleged de facto taking bf a
leasehold interest of the condemnee filed a decla.ration of estimated just
compensation of zero. Airportels then filed a petition alleging that the City's
declaration of just compensation was made in bad faith, and it sought an order to set
aside that declaration with the appointment of an impartial appraiser under Section 1-
407 of the Eminent Domain Code. That relief was granted. Following a hearing, a
remedy in the form of a judgment was entered in favor of the condemnee in the
amount of $4,400,000, In contrast in the case sub judice, none of the prerequisites
set forth in Section 1-407 obligating CAT to file a declaration of estimated just
compensation have occurred. CAT has not filed such an estimate; it has only filed a
declaration of taking pursuant to Section 1-402 the Code, Spurgin alleges the
palpable bad faith of CAT in offering him a settlement of $52,000 for his property
before CAT filed the declaration of taking, There is no relief under the Eminent
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97.1465 CIVIL TERM
Domain Code or appellate authority in Pennsylvania whereby Spurgin could receive
'.
relief even if CAT exercised palpable bad faith in making its $52,000 offer of
settlement before the filing of the declaration of taking,2
Spurgin further maintains that the declaration of taking is defective because
CAT failed to comply with the Uniform Reloca~ion Assistance and Real Property
Acquisition for Federal and Federally Assisted Programs Act 42 U,S.C, 4601 et sea,
There is no requirement that an allegation of compliance with that Act be made in a
declaration of taking under the Eminent Domain Code of Pennsylvania. Hegedic v.
Department of Transportation, 8 Pa, Commw. 551 (1973), Lastly, Spurgin maintains
that the taking of his entire property was excessive which requires that the declaration
of taking be set aside. Based on the within record we find no merit in this allegation.
ORDER OF COURT
AND NOW, this 2\
day of October, 1998, the preliminary objections of the
condemnee to the declaration of taking, ARE DISMISSED.
/
2. Even if this was a palpable bad faith challenge to a declaration of estimated
just compensation, preliminary objections would not be an appropriate remedy for the
condemnee. Township of Chester v, Commonwealth of Pennsylvania,
Department of Transportation, 20 Pa. Commw. 60 (1975),
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97-1465 CIVIL TERM
Joseph A. Klein, Esquire
For Condemnee
James J, Kutz, Esquire
For Condemnor
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IN THE MATTER OF PROCEEDING
BY CUMBERLAND-DAUPHIN-
HARRISBURG TRANSIT AUTHORllY
FOR THE CONDEMNATION OF THE
PROPERlY OF ALAN F, SPURGIN
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNlY, PENNSYLVANIA
97-1465 CIVIL TERM
IN RE: PRELIMINARY OBJECTIONS TO DECLARATION OF TAKING'
BEFORE BAYLEY. J, AND HESS. J.
ORDER OF COURT
. AND NOW, this 1.,
day of October, 1998, the preliminary objections of the
condemnee to the declaration of taking, ARE DISMISSED.
By the'Co ~,:;/
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Edgar B, Bayley,
Joseph A. Klein, Esquire
For Condemnee
James J. Kutz, Esquire
For Condemnor
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Appendix "A"
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,.'"<--"- ---_._._--._.,-----~~._--_._---------
IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY;"'" .~
PENNSYLVANIA
CIVIL DIVISION
INRE:
CONDEMNATION BY THE
COMMONWEALTH OF
PENNSYLVANIA,
DEPARTMENT OF
TRANSPORTATION, OF RIGHT:
OF WAY FOR STATE ROUTE
33, SECTION 002, A LIMITED
ACCESS HIGHWAY IN THE
TOWNSHIP OF BETHLEHEM
NO, 1999-CM-3S03
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--s::: RDER OF COURT )
/ cfJ d y of April 2000, the Preliminary Objections 0 f thc
Condemnce to the Dcclaration of Taking are hercby DISMISSED.
AND NOW, this
STATEMENT OF REASONS
The Commonwealth of Pennsylvania, Department of Transportation (hercinafter
"PcnnDOT") proposcs to continllc Route 33, which currcntly abruptly cnds at its interscction
with Interstate 22, to the point in which it would connect with Interstate 78. Charles Chrin
(hereinafter ''Chrin''), eondemnee, owns a piece of property occupied by a restaurant building, a
driving range, a minialurc golf course, an office building, and a garage in the p~(b of the
proposed construction.
On May 12,1999, PennDOT filed its Declaration of Taking by which a portion ofChrin's
property was condemned for this construction. The property at issue is located at William Penn
Highway and Hope Road in Bethlehem Township, Northampton County, Pennsylvania. The
property before condemnation consisted of 17.917 acres. The taking consisted of .844 acres for
right of way and a temporary construction easement over .069 acres.
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M the time 0 f condemnation, the ~~~pe-~; ~~;~ ~~~~;~i~d-b;;;~;Z~~~I~tbuildi;;g: ~..
driving range, a miniature golf course, an office building, and a garage. The restauranl had been
closed (l11d was not opcrating when the Declaration of Taking was filed. The property was served
by lhree (3) driveways along William Penn Highway.
On June II, 1999, Chrin filcd preliminary objeclions to thc Declaration of Taking,
asserting that (I) the pian filed by the Commonwealth did not correctly dcpietthe size or the
reslauranl building on the properly; (2) the taking results in a denial of adequate access 10
remaining property; (3) the amount offered by the Commonwealth as damages is substantially
lower than thc damages actually sustained; and (4) the Commonwcalth has acted arbitrarily,
capriciously, and in bad faith in its offer of compensation. As rclief, Chrin asks the court to
revest title to him and to order the assessment of damages in accordance with Section 408 of the
Eminent Domain Code, 26 P.S. ~ 1-408.
On July 29, 1999, the Commonwealth moved the court to summarily dismiss thc
preliminary objections. Thc court denicd the motion and allowed Chrin a period of time to take
evidence on the preliminary objcetions and then place the malteron the argumenl'list.
Penn DOT has taken the deposition of Mr. Chrin and Chrin has taken the depositions of
severall'ennDOT employees, a former employce, PennDOT's appraiser and engineering
consultant, and Chrin's appraiser and engineer.
The scope of preliminary objections under the Eminent Domain Code is limited. Simeo
Stores v. Redevelooment Authority, 455 Pa, 438, 317 A.2d 610,613 (1974). Scction 406(a),
gives the Condcml1ec the opportunity to make four (4) challcnges to the Declaration of Taking as
follows:
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Within thirty days after being se'~~d w~i; ~~li~e-;i co-~d~;';;~;liOt~: the ~
Condcmnee may file preliminary objections to the Declaration of
Taking. The court upon cause shown may extend the time for Jiling
preliminary objections. Preliminary objections shall be limited to and
shall be the exclusive method ofehallcnging (1) the power or right of
the Condemnor to appropriate the condemned property unless the
same has been previously adjudicated; (2) the sufficiency of the
security; (3) any other proccdure followed by thc Condemnor; or (4)
the Declaration of Taking. Failure to raise these malleI's by
preliminary objections shall constitute a waiver thereof.
261'.3.9 1-406(a).
On February 15, 1999, three months prior to the filing of the Declaration of Taking,
Penn DOT mailed Chrin a summary of an appraisal which was done on the subject property and
an cstimate of the compensation to be ufforded to Chrin for the urea which PcnnDOT was
seeking to condemn. The total damages indicated in this letter were $135,600.00. Chrin has
obtained an appraisal indicating that the total damages that will result frOm this condemnation to
bc $1,375,000.00.
Chrin's preliminary objections note that this $135,600.00 estimate of just compensation
fails to compensate him for either the demolition and loss of his restaumnt and other facilities
and/ot' the cost of widening and either overlaying or reconstructing I-lope Road and performing
the site refiguration neccssary to access his remaining property through that substandard road.
Pointing tD the deposition lcstimDny, Chrin maintains that hc has established palpable bad {~\ith
onlhc part of PennDOT for offering him only $135,600.00. On that basis he seeks, by
preliminary objection, to strike the Declaration of Taking.
Chrin argucs that the lettcr dated January 15, 1999, was a bad faith offer of estimated just
compensation made by Penn DOT. Contrary tD thc position of Chrin, the January 15, 1999
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summary of compensation to be offered was not an offer of"estimatedj~;t~o;;:;p-ensat-ioii"as~ili,ll-~~-
term is used in the Eminent Domain Code but was a pre-condemnation attempt by Penn DOT to
amicably purchase the property. By contending that the offer to purchase the property was an
offer of estimatcd just compensation, Chrin is ignoring the clear statutory structure in ~ 1-407,
discllssed hereinafter.
[nitially, we note that it has been clearly judicially declared that 9 406 preliminary
objections are not available to a Condemnee who is challenging the estimate just compensation
alleged to have been tendered prior to the delivery of possession. Chester v. Commonwealth
Ocpurtment of Transportution, 20 Cmwlth. Ct. 60, 339 A.2et 892 (1975). In fact, the
.
Commonwealth Court rc[erred to the impropriety of such preliminary objections and the
challenge to estimated just compensation by preliminary objcctions, as being "improper". Id at
895, 896. Chrin's dfort to raise issucs relating to estimated just eompensiltion by cOllching them
in the context of Penn DOT's "bad faith" is merely an attempt to assert an issue indirectly which
cannot be raiscd dircctly. Thc issue has no plaec in these preliminary objections.
Further, based on the language of the January 15, 1999 lettcr, the fact that it was scnt live
(5) months Rrior to the actual filing of the Occlaration ofTuking, and the clear statutory language
discllssed hcreufter as to cstimated just compensation, the January 15, 1999 letter was not, and
legally could not be, an offer of estimated just compensation.
The appropriatc section governing issues concerning estimated just compensation is
Section 407, which provides as follows:
Section 407 - Possession; Entry; Paymcnt of Compensation
(a) The Condemnor, after the expiration of thc time for filing
4
(b)
.
, -.-'''..--------....--.--------..-- --"---_.._-_.~--_.._..~--.._~-....- .--.----. ...- -- .". ,-.. - -..
preliminary objections by the Condemnee to the declaration
of Taking, shall be entitled to possession or right of entry
upon payment of, or a wrillen oiTer to pay to the Condcmnee.
the amount of just compensation as estimnted by thc
Condemnor. if a Condemnee therenfter refuses to deliver
possession or permit right of entry, the prothonotary upon
praecipe of the Condemnor shall issue a rule, returnable in
Ii ve days after service upon the Condemncc, to show cause
why a writ of possession should not issue, upon whieh the
court, unless preliminary objections warranting delay arc
pending, may issue a writ of possession conditioned upon
payment to the Condemnee or into court of such estimated
just compensation and on such other terms as the court may
direct.
If within sixty days from the liIinl! of the declaration of
taking, the Cpndemnor has not paid just compensation as
provided in subsection (a) of this section, the Condemnee
may tender possession' or right of entry in writing and the
Condemnor shall thereupon make payment of the just
compcnsation due such Condemnee as estimated by the
Condemnor. If the Condemnor fails to make such payment
the court, upon petition of the Condemnee, mav compel the
Condemnor to file a declaration of estimate compensation or,
if the Condemnor fails or refuses to file such declaration. may
at the cost of the Condemnor appoint an impartial expert
appraiser to estimate such just compensation. The court may
aller hearing, enter judgment for the amount of the estimated
just compensation.
(c) The compensation paid under subsections (a) and (b) of this
section shall be without prejudice to the rights of either the
Condemnor or the Condemnce to proceed to a linal
detennination of the just compensation and the payments
hcretofore made shall be considered only as payments pro
tanto of the just compensation. as finally determined.
However, in no event shall the Condemnee be compelled to
pay back to the Condemnor the compensation paid under
subsection (a) and/or (b), even if the amount of just
compensation as finally determined shall be less than the
compensation so paid.
261'.$. S 1-407. (Emphasis added).
5
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According to Scction 407, the offer;f~~;;~;t;dj'~;t~;~lp~~;;ti;~ iS~~Ol-t;:iggc;:(X~;l;t;r'
the Condemnor or the Condemnee wishes the Condemnor to take possession of the properly.
The Em;n"nl Domain Code docs not impose upon the Condemnor any right or obligalion to
make [l11 olTer of just compel1s[ltion prior to the filing of [l Declarution of Taking. Citvor
Scranton, 132 P[l. Cmwlth. 175,572 A.2d 250 (1990). In fact, the Eminent Domain Code is
silent with respect to offers of "estimated jnst compensation" prior to the initiation of
Condemnation proceedings because thcre can be no such offer. In Re: Condcmnation of 11 ()
Washington Street, et aI., 136 Montg. Co. L. R. 176 (1999).
Thc issuc in this eusc is the propriety of challenging estimated just compensation by way
.
of preliminary objection prior to a demand by thc Condcmnor for posscssion. There is not a
single case unclcr the Pennsylvania Eminent Domain Code where preliminary objections to a
Declaration of Taking bave been sustained because thc Condcmnor's pre-Condemnation oner to
purcbase the property bas been made in bad faith, because such u scenario' is not legally
recognizable or actionable. In Re: Condemnation of [to Wasbington Street, et aI., 136 Monlg.
Co. L. R. 176 (! 999)(citing eases). In preliminary objections similar to those filed by Chrin in
thc case sub ludice, thc Condemnec in I 10 Washington Street alleged bad faith in a pre-
Dcclaration of Taking offer of cstimated just compensation. The court held that Condemnees
bad faith claim was not a proper preliminary objection to the Declaration of Taking, stating the
following:
In the instant case, the Condcmnee is asscrting that no Condemnation
has taken place because thc Condemnor's pre-Condemnation offer
was mnde in bad faith. However, since payment of cstimated just
compensalion, and the dctennination of the propriety thereol~ is a
matter properly addressed only after eithcr party requests Condemnor
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take possession of the property pursuant to s~~-ii~~~-407 cJ-ti;;--
Eminent Domain Code, it cannot form the basis of Preliminmy
Objections whcre proceedings arc initiated by the filing 01" a
Declaration of Taking. The obvious reason is that ifno Dec!;lration
of Taking has been properly filed, for whatever reason, the
Condemnee has no right to estimated just compensation. There is not
a single case under the Pennsylvania Eminent Domain Code wherc
Prcliminary Objection to a Declaration of Taking have been sustained
because the Condemnor's pre-Condcmnation offer to purchase the
[lroperly has been made in bad faith, because such a scenario is not
legally recognizable or actionable. Section 407 of the Code clearly
sets forth a systematic and time-tested structure to be [ollowed in this
Commonwealth and an offer of estimated just compensation can only
be made post Condemnation.
rd. at 212. (Em[lhasis in original).
Chrill cites In re: Condcmnation bv City of Philadelnhia of Leeshold of Airnortels, Inc.,
40 Pa. Cmwllh. 409, 398 A.2d 224 (1979), and Redevelopment Authoritv of the City of Erie v.
Owners or Parties in Interest, I Pa. Cmwlth. 378,274 A.2d 244 (1971) as authority [or the filing
of preliminary Qbjections to an allegedly bad faith offer of estimated just compensation. His
reliance on Airportcls and City of Erie is misplaced. In 110 Washinl!ton Street, the Condemnee
similarly eited to Airportels and City of Erie as authority for the filing of preliminary objections
to an ,lllegcdly bad faith ofTcr of estimated just compcnsation. rd. at 213. Judge Bertin, the
author of the 110 Washinl!ton Street opinion, distinguished Airportels and City of Eric, stating
thc following:
[13]oth City of Erie and Airoortels involved invcrse Condemnation,
where the Condemnee, upon asserting inverse Condemnation of its
propcrty, initiated proceedings by liling a petition for the appointment
of a J urv of View and a petition reauirinl! the Condemnor to filc a
declaration of estimated iust compensation. The Condernnee then
filed preliminary objcctions to the Condemnor's declaration o[
estimated iust cOO1ocnsation asscrting that thc estimate was made in
bad faith. [n both cases, the eourt confirmed the right of the
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Condemnee to tile prelimj-~~l; ~-bje~~-i;~-;~lZI;~\ti;tl~~~t;r~.'~bo(j~
cascs, thc Condemnee asserted lhal a Condemnation hud taken place
with a deelaralion of taking having been filed, and that it was entitled
to paymcnt of estimated just compensation. In our case, however,
estimated just compensation, und the determination of the propriety
thereoC is a post-Condemnation malter, pursuant to Section 407 of
the Eminent Domain Code. [t cannot form the basis ofpreliminary
objections where proceedings arc initiated by the filing of II
declaration of taking. Therefore, by law and the eonelusion of this
court, the Condemnor has not as yet made, and as long as these
preliminary objections are outstanding cannot make, under
Pennsylvania statutory law, an offcr of estimated just compensation.
At the appropriately statutorily dictated time, in the future, the
Condemnor will make its considered offer of estimated just
compensation.
Id. at 213. (Emphasis in original)
In the instant case, Chrin is challenging the sufticiency of compensation offercd when
possession is demanded. However, none oOhe prerequisites set forth in Section 1-407 obligating
Penn DOT to file a declaration of estimated just compensation have occurred. Penn DOT has not
tiled such an eslimatc; it has only filed a Dcclaration of Taking. Chrin alleges palpable bad faith of
PennDOT in offering him a settlement of $135,600.00 for a portion of his properly be/ore PcnnDOT
liled its Declaration of Taking. Chrin is seeking a full disposition of this condemnation loo early in
thc procecdings. While preliminary objections may properly be used to challengc the power and
right of the Condemnor to condemn, preliminary objections cannot bc utilizcd to challenge the
sufl1cicncy of the compensation offered prior to the delivery of posscssion.
Chrin is essentially attempting to invalidate the cntire taking on compensation grounds. The
propriety of compensation is a matter properly addressed only after either party requesls Condemnor
take possession of the pt'Operty pursuant to Section 407 oCthe Codc and cannot form the basis or
Preliminary Objections where proeecdings are initiated by the tiling ofa Declaration oI'Takin~.
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I;m the I(lregoing reasons, PcnnDOT has not yct madc an oller or estiL;lated jlLst
cOIl1[lensation. and there is no bad faith, as a mattcr of law, in PennDOT's [lre-Con(kmnation
January 15, 1999 olTcr to [lurehase a [lortion of Chrin's pro[lCI1y.
Lastly, Clwin also calls for the Declaration of Taking to be set aside bccausc the laking will
lead to inadequate post-condemnation access to his remaining pro[lerty. In the [lresent casc, there
is no question that PennDOT's condemnation will affect the current access to Chrin's [lro[lcrty and,
as a result, Chrin will be entitled to damages to cure this resulting acccss problem. llowever, this
is not an issue properly raised in a challenge to the condemnation by preliminary objections under
Section 406. We believe this is a damage issue to bc properly addressed at a later stage of the
proceedings, such as upon the filing of a petition for thc appointment of viewers to assess the
damages sustained as a rcsult of the taking.
BY THE COURT:
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IN RE: CONDEMNA nON BY
THE COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION, OF RIGHT OF
WAY FOR S.R. 0581, SECTION 004,
R1W, IN THE TOWNSHIPS OF
HAMPDEN AND LOWER ALLEN
MICKEY C, SHULER,
Condemnee
v.
COMMONWEAL TH OF
PENNSYL VANIA,
DEPARTMENT OF TRANSPORTATION,:
Condemnor
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 01.587 CIVIL TERM
CIVIL ACTION - LAW
EMINENT DOMAIN PROCEEDINGS
ANSWER OF CONDEMNEE. MICKEY Co SHULER TO PETITION FOR RULE TO SHOW
CAUSE: MOTION TO STRIKE IMPROPER PRELIMINARY OBJECTIONS FILED TO THE
DECLARATION OF TAKING: AND MOTION IN LIMINE
AND NOW, this 1201 day of November 2001, Mickey C. Shuler, Condemnee in the
instant action, by his attorneys, Joseph A. Klein, P.C., respectfully files his Answer to the
above Petition and Motions and represents as follows:
I. Denied. The averments of Paragraph I. which relate to the Declaration of Taking
filed by Condemnor, Commonwealth of Pennsylvania, Department of Transportation
(hereinafter "Penn DOT" or "Condemnor") are denied in that the document in question,
Condemnor's Declaration of Taking, speaks for itself It is admitted that said document was
filed on January 29, 200 I.
2. Admitted.
3. Admitted.
4. Denied. Condemnor's Answers to Condemnee's Preliminary Objections speak for
themselves; no further pleading is required.
5. Denied. The averments set forth in Paragraph 5. of Penn DOT's Petition repeat those
specifically contained in Condemnee's Preliminary Objections and speak for themselves; no
further pleading is required.
II
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I. Petition for Rule to Show Cause
6. Denied. The averments of Paragraph 6. state a conclusion oflaw to which no
responsive pleading is required. To the extent any responsive pleading is required, Condemnee
avers that he will be able to meet any burden of proof imposed upon him by the provisions of
Pennsylvania Eminent Domain Code and the case law interpreting the same.
7. Denied. The provisions of the Eminent Domain Code, 26 P.S. ~ 1-406 (e) speak for
themselves; no further pleading is required.
8. Denied. The pleadings filed on behalf of Condemnor Penn DOT speak for
themselves; no further pleading is required.
II, Motion to Strike ImDroDer Preliminary Objections
9. Denied. The averments of Paragraph 9. constitute conclusions oflaw to which no
responsive pleading is required. Alternatively, and to the extent that a responsive pleading may
judicially be required, it is denied that the aforesaid Preliminary Objections filed by
Condemnee are without merit, beyond the scope of the Eminent Domain Code and/or must be
stricken as a matter oflaw. To the contrary, the courts of this Commonwealth are vested with
the power to inquire as to whether a Condemnor's Estimate of Just Compensation has been
made in good faith. In the only reported appellate court decision dealing with the issue of the
propriety of filing Preliminary Objections relating to Condemnor's Declaration of its Estimate
of Just Compensation, the Commonwealth Court in In re: Condemnation hv City of
Philadelphia of Leasehold of Airportels. Inc., 40 Pa. Cmwlth. 409, 398 A 2nd 224 (1979) held
that:
"A Declaration of Taking might he set aside on conclusive proof that the
condemnor acted in bad faith in making a required statement of the sum of
money e.~timated to be just compensation. "
Id. at 419, 229, see also Schenck v. Pittshurf!h, 364 Pa. 31, 70 A. 2nd 612 (1950); Winger v.
Aires, 371 Pa. 242, 89 A. 2nd 521 (1952); Redevelooment Authority of The City of Erie v.
Owners or Parties In Interest, 1 Pa. Cmwlth. 378,274 A. 2nd 244 (1971) were it was held that:
"lfthe power conferred on a municipality to take property by eminent domain
may be inquired into and corrected by the courts where bad faith appears,
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surely condemnor's conduct infeigned, not genuine, compliance with a statute
designed to protect the condemnee, may also be inquired into and corrected. "
Id at 228.
Condemnor, Penn DOT's initial offer of its alleged Estimate of Just Compensation made
under date of December 18, 2000, in sum of Ten- Thousand Five-Hundred ($10,500.00) Dollars
is attached hereto as Condemnee's Exhibit "A".
Thereafter, under date of October 1, 2001, subsequent to the filing of the instant
Preliminary Objections by Condemnee, Condemnor submitted a letter to Condemnee's counsel
setting forth:
"Please be advised that the Department has apprOl'ed a revised pre-approval in
the abOl'e-captioned claim in the amount of Thirty- Two Thousand Five-
Hundred and Fifty ($32,550.00) Dollars based upon the appraisal report of
William Rothman. "
A redacted copy of this letter is attached hereto as Condemnee's Exhibit "B".
Penn DOT's latest "Estimate ofJust Compensation" fails to reflect that Condemnee's
tenant "Grinnell Fire Protection Systems Company, Inc," referenced in Paragraph 11. of his
Preliminary Objections has since acted to terminate its lease with Condemnee and Condemnee
has been unable to secure a replacement tenant based on Penn DOT's purported taking of his
property including its "Temporary Construction Easement", To the contrary, Penn DOT's
Appraiser, William Rothman, based his appraisal in part or in whole on his erroneous
conclusion that Grinnell expressed no concern about the affects of the condemnation on its
continued occupancy of its leased premises,
ill, Motion in Limine
10, Denied, The averments of this paragraph constitute conclusions oflaw to which no
responsive pleading is required,
11. Denied. Condemnee denies the averments of Paragraph I], on the same basis that he
sets forth in his Answer to Paragraph 9, of Condemnor's Motion, which Answer is
incorporated herein by reference,
12, Denied, The averments of Paragraph ]2, constitute a legal conclusion to which no
responsive pleading is required. Alternatively, to the extent that an Answer is required to the
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averments of Paragraph 12., Condemnee's Answer to Paragraph 9. of Condemnor's Motion is
incorporated herein by reference. In addition thereto, the Order of Court issued by the
Honorable J. Wesley Oler, Jr. under date of October 23,2001, specifically provides that:
"4, Depositions shall be completed within forty-nine (49) days of the date of
this Order,.. " ,
which clearly permits the very discovery sought by Condemnee particularly as the same relates
to the manner in which Condemnor fashioned its alleged offers of Just Compensation to
Condemnee, including but not limited to its failure to recognize the difficulties attendant to
leasing the "Grinnell" building to subsequent occupants due to the nature of Penn DOT's
taking.
WHEREFORE, for all of the reasons set forth in Condemnee Mickey C. Shuler's
Answer to Condemnor Penn DOT's Petition and Motions, it is hereby respectfully requested
by said Condemnee that the same be denied and that Condemnor Penn DOT's Declaration of
Taking be set aside, and alternatively that Condemnee be permitted to pursue Discovery
including but not limited to depositions of Penn DOT's employees and independent contractors
including engineers and appraisers in support of his Preliminary Objections as aforesaid.
Respectfully submitted:
JOSEPH AKLEIN, P.c.
By:
Mark S. Silver, squire
Attornery J.D. No. 09825
500 North Third Street, 7th floor
P.O. Box 1152
Harrisburg, P A 1710 1
(717) 233-0132
Attorneys for Mickey C. Shuler,
Condemnee
Date: \ \- \1.. -0 \
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VERIFICATION
I, Mickey C. Shuler, hereby affirm, subject to the penalties of 18 Pa.C.S. ~4904 relating
to unsworn falsification to authorities, that I am the equitable Owner of the property which is
the subject of the instant condemnation and am authorized to make this Verification. and that
the statements of fact in the foregoing ANSWER OF CONDEMNEE, MICKEY C.
SHULER TO PETITION FOR RULE TO SHOW CAUSE; MOTION TO STRIKE
IMPROPER PRELIMINARY OBJECTIONS FILED TO THE DECLARATION OF
TAKING; AND MOTION IN LIMINE are true and correct to the best of my present
knowledge, information, and belief.
I
Date:
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RW446 (07n6)
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
REMIS Proi. No. 080063
County Cumberland
Federal Proi. No.
Route - Sec. 0581-004
Claim No. 21001200000
Claimant Hampden Industrial
Development Authoritv
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Date: 12-18-00
Hampden Industrial Development Authority
230 Sporting Hill Road
Mechanicsburg, Penna. 17055
Attn: Sharon Browne
Dear Sirs:
As you have previously been informed, your property or a portion of it is required for the above transportation
improvement. Regrettably, we have not been able to reach an agreement with you for the purchase of the required
right-of-way. Therefore it will be necessary for the Department of Transportation to file a Declaration of Taking in
Court to acquire the right-of-way necessary for the improvement, in accordance with the provisions of the Eminent
Domain Code of 1964.
Even though we have not reached an agreement, the full amount of our offer, $10,500.00 will be made
available to you after the Declaration of Taking is filed without jeopardizing or waiving your rights to petition the Court
for a hearing of your claim. Also, if the condemnation involves the taking of your dwelling or business, be assured that
you will not be required to move without your prior receipt of a written notice which will give you at least ninety (90)
days to complete you arrangements. Please understand that this letter is not an eviction notice and should not be
considered as such.
A memorandum explaining your rights as a condemnee under the Eminent Domain Code is enclosed.
Acquisition proceedings in the Courts will be started approximately one week from the above date. You will
receive a specific notice informing you where and when the Declaration of Taking was filed.
We remain willing and anxious to discuss your claim with you. If you have any questions regarding your
claim, the condemnation procedure, or your rights under the Eminent Domain Code, your Right-of-Way Representative
will be glad to discuss them with you.
In the event that you have decided to accept our offer - and thus avoid the necessity of the filing of a
Declaration of Taking - please notify your Right-of-Way Representative at once.
Sincerely,
~e~~
District Right of Way Administrator
Engineering District 8-0
Attachment: RW475M
Your Right of Way Representative is: Michael E. Foutz
Telephone No.: 787-5035
EXHIBIT
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COMMONWEALTH OF PENNSYLVANIA
il /DEPARTMENT OF TRANSPORTATION
~__ www.dol.state.pa.us
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Office of Chief Counsel
P. O. Box 8212
Harrishurg, PA 17105-8212
Tel (717) 787-3128
Fax (717) 772-2741
cjclemLo(fVflot.state.pa. us
I October 2001
Joseph A. Klein, P.C.
500 North 3'd Street, 7th Floor
Harrisburg, PA 17101
Re: In Re Condemnation by the Commonwealth of
Pennsylvania, Department ofTranspOllation, of
Right of Way for S.R. 0581, Section 004 R/W, in
the Borough of Camp Hill and the Townships of
Hampden and Lower Allen
No. 01-587 Civil. Cumberland Countv
Claimants: Hampton Industrial Development Authority
(legal owner) & Mickey C. Shuler (equitable
owner)
Claim No. 210-120
Dear Joe:
Reference is made to your correspondence dated September 24, 200 I. Please be advised
that the Department has approved a revised pre-approval in the above captioned claim in the
amount of$32,550.00 based upon the appraisal report of William Rothman.
., __ . ,- ~r~<..,.",.,....--__~~~~ ~._- .
EXHIBIT
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Thank you for your time and attention with regard to this matter.
cc: David B. Reynolds, R/W Admin.. Dist. 8-0
Timothy F. Boles, P.E., Boles, Smyth Assoc., Inc.
William Rothman, RSR Realtors
Very truly yours,
2
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CERTIFICA TE OF SERVICE
I, JOSEPH A. KLEIN, ESQUIRE, attorney for Condemnee, do hereby
certifY that on this date I served the foregoing ANSWER OF CONDEMNEE,
MICKEY C. SHULER TO PETITION FOR RULE TO SHOW CAUSE; MOTION
TO STRIKE IMPROPER PRELIMINARY OBJECTIONS FILED TO THE
DECLARATION OF TAKING; AND MOTION IN LIMINE by having placed a true
and correct copy of same in the United States Mail. First Class, postage prepaid,
deposited at Harrisburg, Pennsylvania, addressed to counsel for PennDOT as follows:
Christopher J. Clements, Esquire
Assistant Counsel in Charge
Commonwealth of Pennsylvania
Department of Transportation
Office of Chief Counsel
P.O. Box 8212
Harrisburg, PA 17105-8212
Joseph A, Klein, p,c.
se h A. lein, Esquire
.D. o. 00782
_ 0 North Third Street, 7th Floor
Harrisburg. P A [71 0 I
(717) 233-0132
Attorney for Owner/Condemnee
Date: II tiE. (01
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF RIGHT OF WAY FOR S.R. 0581,
SECTION 004 R/W, IN THE TOWNSHIPS OF
HAMPDEN AND LOWER ALLEN
CIVIL ACTION -- LAW
MICKEY C. SHULER,
Condemnee
No. 01-587 CIVIL TERM
v.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
EMINENT DOMAIN
PROCEEDINGS--IN REM
Condemnor
ORDER
AND NOW, this _ day of October, 2001, upon review of the Condemnor's Petition
for Rule to Show Cause, a Rule is issued upon the Condemnee to show cause why the
preliminary objections should not be dismissed.
Rule returnable and evidentiary hearing with respect to the Preliminary Objections is
hereby scheduled for
,2001, at
o'clock, _m., in Court
Room No.
, of the Cumberland County Courthouse, Carlisle, Pennsylvania.
BY THE COURT,
cc: Joseph A. Klein, Esq.
Christopher J. Clements, Esq.
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COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
OFFICE OF CHIEF COUNSEL
By: Christopher J. Clements
Assistant Counsel in-Charge
Supreme Court LD,# 44699
P.O. Box 8212
Harrisburg, PA 17105-8212
(717) 787-3128
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF RIGHT-OF-WAY FOR S.R. 0581,
SECTION 004 R/W, IN THE BOROUGH OF
CAMP HILL AND THE TOWNSHIPS OF
HAMPDEN AND LOWER ALLEN
CML ACTION -- LAW
MICKEY C. SHULER,
Condemnee
No. 01-587 CIVIL
v.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
EMINENT DOMAIN
PROCEEDINGS--IN REM
Condemnor
PETITION FOR RULE TO SHOW CAUSE; MOTION TO
STRIKE IMPROPER PRELIMINARY OBJECTIONS FILED
TO THE DECLARATION OF TAKING; AND MOTION IN LIMINE
AND NOW, this 16TH day of October, 2001, the Commonwealth of Pennsylvania,
Department of Transportation, condemnor (Department), by its attorney, Christopher J.
Clements, Assistant Counsel in-Charge, Right of Way Section, respectfully represents as follows:
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1. On January 29, 2001, the Department filed a declaration of taking acquiring .153
acres in fee simple title and .188 acres in temporary construction easement (access) area from the
property of Mickey C. Shuler (condemnee) for the construction of a retaining wall in a noise
mitigation project along S.R. 0581, a major transportation facility (limited access highway) in
Cumberland County.
2. On March 2, 2001, the condemnee filed preliminary objections pursuant to
Section 1-406 of the Eminent Domain Code, 26 P.S. ~1-406.
3. On July 19, 2001, the Department filed an answer to condemnee's preliminary
objections.
4. Paragraphs 10, 12, 13 and 14 were specifically denied by the condemnor to the
extent that each raised issues of just compensation for lost use of the remaining property,
payment of money or otherwise matters of "economic" impact upon the remaining property
alleged as a result of the taking.
5. Other issues raised included, inter alia, allegations of excessive taking, allegations
of arbitrary and capricious conduct in the engineering alternatives selected by the Department
and allegations that the temporary construction easement is improper for failure to state a "time
frame".
2
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I, Petition for Rule to Show Cause
6. A party challenging a declaration of taking has the heavy burden of proof in
seeking to have the declaration of taking set aside upon assertions of arbitrary and capricious
conduct, abuse of discretion and bad faith. The condemnee will be unable to meet this burden of
proof.
7. The Eminent Domain Code, 26 P.S. ~1-406(e) provides that the court shall
determine promptly all preliminary objections.
8. The Department respectfully requests that the court issue a rule upon the
condemnee to show cause why the preliminary objections should not be dismissed, scheduling an
evidentiary hearing promptly for the taking of testimony and evidence on all disputed issues of
fact.
II. Motion To Strike Improper Preliminary Objections
9. To the extent that this paras. 10, 12, 13, and 14 allege impacts to the use and
economic viability of the remaining property, substantial loss of fair market value to
condemnee's buildings and remaining land or otherwise reference the payment of money or just
compensation as a result of the within declaration of taking, said paragraphs improperly refer to
matters of just compensation which are beyond the scope of permissible preliminary objections
to a declaration of taking. Accordingly, said objections are without merit, beyond the scope of
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the Eminent Domain Code and must be stricken as a matter oflaw. 26 P.S. ~1-406(a); Township
of Chester v. Deoartment of Transportation, 339 A.2d 892 (Pa.Cmwlth., 1975); In the Matter of
Proceedinl! bv Cumberland-Dauphin-Harrisburl! Transit Authority for the Condemnation of the
Property of Alan F. Spurl!in, (Cumberland County No. 97-1465, Civil Term, filed October 21,
1998, as per Bayley, J.), at 4-5; In Re: Condemnation of 110 Washinl!ton Street. et al' 136
Montg. Co. L.R. 176, 212 (1999); In Re: Condemnation bv the Commonwealth ofPennsvlvania.
Deoartment of Transportation, ofRil!ht ofWav for State Route 33, Section 002, a Limited
Access Hil!hwav in the Township of Bethlehem (Chrin), (Northampton County No. 1999-CM-
3503, Civil Div., filed April 14, 2000, as per Moran, J.), at 7-8.
III, Motion In Limine
10. Section 1-406(e) of the Eminent Domain Code, 26 P.S. ~1-406(e), provides that if
issues of fact are raised, the court may take evidence by depositions or otherwise. The general
rules of deposition and discovery apply to proceedings in Eminent Domain. Pa,R.C.P. No.
4001 (a).
11. As set forth in para. 9, above, the condemnee has alleged impacts to the use and
economic viability of the remaining property, substantial loss of fair market value to
condemnee's buildings and rernaining land or otherwise made reference the payment of money or
just compensation as a result of the within declaration oftaking, all of which refer to matters of
just compensation which are beyond the scope of permissible preliminary objections to a
declaration of taking.
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12. No discovery, deposition or inquiry whatsoever is relevant, and should be
permitted, on any of the issues concerning just compensation raised in the context of preliminary
objections filed under Section 1-406 of the Eminent Domain Code. To permit inquiry into such
matters delays the expeditious review of the preliminary objections and, accordingly, delays the
construction of the public project contrary to the law and the public policy of this
Commonwealth since-once the power and right to condemn has been established---only a good
faith offer of estimated just compensation is required in order for a condemnor to obtain
possession of the condemned area in order to proceed to construction. 26 P.S. ~1-407. The issue
of just compensation is thereafter subject to final determination through petition for board of
view and, if necessary, trial by jury. A motion in limine is therefore appropriate in order to limit
litigation of this matter to the proper scope of preliminary objections as authorized by law.
5
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WHEREFORE, for all of the foregoing reasons, the Commonwealth of Pennsylvania,
Department of Transportation, condemnor, respectfully requests this Honorable Court to enter
the attached, proposed order granting the motion for a rule to show cause why the preliminary
objections should not be dismissed and, following legal argument or otherwise upon
consideration of the Department's remaining motions herein, granting the motion to strike paras.
10, 12, 13, and 14 of the preliminary objections as being beyond the scope of Section 1-406 of
the Eminent Domain Code and granting the motion in limine precluding all deposition or inquiry
whatsoever on any of the issues concerning just compensation.
Respectfully submitted,
Attorney for the Condemnor
6
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION
OF RIGHT OF WAY FOR S.R. 0581,
SECTION 004 R/W, IN THE BOROUGH OF
CAMP HILL AND THE TOWNSHIPS OF
HAMPDEN AND LOWER ALLEN
CIVIL ACTION -- LAW
MICKEY C. SHULER,
No. 01-587
Plaintiff
v.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Defendant
EMINENT DOMAIN
PROCEEDINGS -- IN REM
CERTIFICATE OF SERVICE
I certify that I am serving the attached Petition For Rule to Show Cause; Motion to Strike
Improper Preliminary Objections Filed to the Declaration of Taking; and Motion In Limine
upon the person and in the manner as set forth below, which service satisfies the requirements of
Pa.R.C.P.440:
BY FIRST CLASS MAIL:
Joseph A. Klein, Esquire
500 North 3rd Street, 7th Floor
Harrisburg,PA 17101
Respectfully submitted,
Attorney for the Defendant
Dated: 16 October 2001
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IN RE: CONDEMNATION BY
THE COMMONWEALTH OF
PENNSYL VANIA,
DEPARTMENT OF
lRANSPORTATION, OF
RIGHT OF WAY FOR S.R.
0581, SECTION 004 R/W, IN
THE TOWNSHIPS OF
HAMPDEN AND LOWER
ALLEN
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
MICKEY C. SHULER,
Condemnee
v.
CIVIL ACTION - LAW
COMMONWEALTH OF
PENNSYL VANIA,
DEPARTMENT OF
TRANSPORTATION,
Condemnor
NO. 01-587 CIVIL TERM
ORDER OF COURT
AND NOW, this 23rd day of October, 2001, upon consideration of Condemnor's
Petition for Rule To Show Cause; Motion To Strike Improper Prelirninary Objections
Filed to the Declaration of Taking; and Motion in Lirnine, it is ordered that:
1. A Rule is issued upon Condemnee to show cause why Condemnor is not
entitled to the relief requested;
2. Condemnee shall file an answer to the rnotion within 21 days of the date of
this order;
3. The petition shall be decided under Pa. R.C.P. 206.7;
4. Depositions shall be cornpleted within 49 days of the date ofthis order;
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5. Argurnent shall be held on Monday, February 11, 2002, at 1:30 p.rn., m
Courtroorn No.1, Curnberland County Courthouse, Carlisle, Pennsylvania.
6. Briefs shall be subrnitted at least seven days prior to argument.
Joseph A. Klein, Esq.
500 North Third Street
Seventh Floor
Harrisburg, PA 17101
Attorney for Condemnee
Christopher J. Clements, Esq.
Assistant Counsel in-Charge
Commonwealth of Pennsylvania
Department of Transportation
P.O. Box 8212
Harrisburg, PA 17105-8212
Attorney for Condemnor
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BY THE COURT,
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MICKEY C. SHULER,
Condemnee
v.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
CIVIL ACTION - LAW
COMMONWEALTH OF
PENNSYLVANIA,
DEPARTMENT OF
TRANSPORTATION,
Condemnor
NO. 01-587 CIVIL TERM
ORDER OF COURT
AND NOW, this 24th day of January, 2002, upon consideration of the
Condemnee's Motion for Continuance of Briefmg, Argurnent Court, and Discovery
Schedule Pursuant To Pa. R.C.P. 216, a Rule is hereby issued upon Condemnor to show
cause why the relief requested should not be granted.
RULE RETURNABLE within 10 days of service.
BY THE COURT,
J.
0/1
esley Oler,., . J. ~
~-Tto<>>~~~
/Mark S. Silver, Esq.
500 North Third Street
7th Floor
P.O. Box 1152
Harrisburg, P A 1710 1
Attorney for Condemnee
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./Christopher J. Clements, Esq.
Assistant Counsel
Office of Chief Counsel
Department of Transportation
p.o.8ox 8212
Harrisburg, PA 17105-8212
Attorney for Condemnor
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JAN 2 2 2002 tJ'
. IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF RIGHT OF WAY FOR S,R. 0581,
SECTION 004, R/W, IN THE TOWNSHIPS
OF HAMPDEN AND LOWER ALLEN
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No, 01-587 CIVIL TERM
MICKEY C. SHULER,
Contlemnee
v.
CIVIL ACTION - LAW
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Condemnor
EMINENT DOMAIN PROCEEDINGS
ORDER
AND NOW, this day of January 2002, upon consideration of
Condemnee's Motion for Continuance of Briefing, Argument Court and Discovery
Schedule Pursuant to Pa. R.C.P. 216, it is ordered that:
(I) The Continuance is granted and the matter is rescheduled for
Argument Court to be held at least sixty (60) days subsequent to February 11, 2002, or on
,2002, at_:__.m., in Courtroom No.1,
Cumberland County Courthouse, Carlisle, Pennsylvania;
(2) BriefS shall be submitted at least seven (7) days prior to argument;
(3) Depositions shall be completed within forty (40) days of the date
of this Order.
BY THE COURT:
J.
CC: Mark S. Silver, Esquire
Attorney J.D. No. 09825
500 North Third Street, 7th Floor
P.O. Box 1152
Harrisburg, P A 17101
(717) 233-0132
Attorneys for Mickey C. Shuler,
Condemnee/Owner
Christopher J. Clements, Esquire
Assistant Counsel in Charge
Office of Chief Counsel
P.O. Box 8212
Harrisburg, PA 17105-8212
(717) 787-3128
Attorney for Commonwealth of Pennsylvania
Department of Transportation, Condemnor
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IN R'E: CONDEMNATION BY
Tlm COMMONWEALTH OF
PENNSYL V ANlA, DEPARTMENT OF
TRANSPO'RTATION, OF RIGHT OF
WAY FOR S,R. 0581, SECTION 004,
RlW, IN THE TOWNSffiPS OF
llAMI'I)EN AND LOWER ALLEN
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
No, 01-587 CIVIL TERM
MICKEY C. SHULER,
Condemnee
v.
CIVIL ACTION - LAW
COMMONWEAL TH OF
PENNSYL VANIA,
OEPARTMENT OF TRANSPORTATION,:
Condemnor
EMINENT DOMAIN PROCEEDINGS
MOTION FOR CONTINUANCE OF BRIEFING. ARGUMENT COURT. AND
DISCOVERY SCHEDULE PURSUANT TO PA. R.c.P. 216
AND NOW, this '2..1.~ of January, 2002, comes Condemnee,
Mickey C. Shuler (hereinafter "Shuler" or "Condemnee") through his counsel
Mark S. Silver, Esquire, of Joseph A. Klein, P.C., and moves this Honorable Court to
continue the presently scheduled Briefing (due at least seven (7) days prior to February
11, 2002), Argument Court (February 11, 2002) and Discovery (Deposition) schedule for
the following reasons:
1. The Declaration of Taking in the above matter was filed by Penn DOT on
January 29,2001; served on Shuler on or about February 2,2001.
2. Shuler timely filed "Preliminary Objections to the Declaration of Taking"
on March 2,2001.
3. On or about July 19, 2001, Penn DOT filed its "Answer of the Defendant
to Preliminary Objections Filed to the Declaration of Taking".
4. On or about October 16, 2001, Penn DOT filed the following pleadings:
"Petition for Rule to Show Cause; Motion to Strike Improper Preliminary Objections
Filed to the Declaration of Taking; and Motion in Limine".
1
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5. On October 23,2001, this Honorable Court issued an Order of Court
which required, inter alia: That Condemnee file an Answer to Penn DOT's Motion
within twenty-one (21) days of the date of the Order (or on or before November 13,
2001), said Order also scheduling Argument for February 11, 2002, with Briefs to be
submitted at least seven (7) days prior to Argument (or on or before February 4, 2002),
and depositions to be completed within forty-nine (49) days of the date of said Order.
6. On November 13, 2001, Shuler filed an "Answer ofCondemnee, Mickey
C. Shuler to Petition for Rule to Show Cause; Motion to Strike Improper Preliminary
Objections Filed to the Declaration of Taking; and Motion in Limine".
7. Throughout the entire period referenced by the procedural history of this
matter set forth above in Paragraphs 1 through and including 6, incorporated herein by
reference, the parties have continued to seek to resolve and/or narrow the issues in
dispute.
8. Exhibit "2" attached to and incorporated in Penn DOT's "Answer of the
Defendant to Preliminary Objections File to the Declaration of Taking" is a color-coded
copy of the plan of condemnation (recorded in Cumberland County) of Shuler's subject
real property. (See para. 5 of Penn DOT's "Answer...")
A true and correct copy of said "plan of condemnation" is attached hereto as
Exhibit" A", incorporated herein by reference.
9. Depicted on the aforesaid "plan of condemnation" (Exhibit "A") inter alia,
are the following relevant areas:
(a) Area Penn DOT seeks to acquire pursuant to Declaration of
Taking filed in the instant matter as "Required Right-Of-Way"
colored in blue; and
(b) Area Penn DOT seeks to acquire pursuant to Declaration of
Taking filed in the instant matter as "Temporary Construction
Easement (Access)" colored in yellow; and
( c) Line drawings of the perimeters of the several
commercial/industrial buildings situate on Shuler's property; and
(d) Public streets which provide access, ingress and egress to and
from Shuler's property.
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10. The aforesaid "plan of condemnation" (Exhibit "A") fails to depict thereon
the locations of: (a) any and all proposed relocated sanitary sewer lines; (b) any
easement( s) as may be required on Shuler's property for sanitary sewer relocation; and
(c) any temporary easement for the construction (and relocation) of the sanitary sewer,
despite Penn DOT requiring that said Camp Hill Borough relocate its sanitary sewer lines
situate as of the date of condemnation within Penn DOT's Right-Of-Way to the outside
thereof, thus on Shuler's remaining property.
11. At a meeting held at the site on January 10, 2002, attended by
representatives of the Borough of Camp Hill and its engineers, and as well by
Condemnee Mickey C. Shuler and his undersigned counsel, but at which no
representative of Penn DOT appeared despite having been notified of and invited to
attend the same, the attached two (2) page Exhibit "B", incorporated herein by reference,
was provided by representatives of Hart mart & Associates, Inc., Camp Hill Borough
engineers.
Sheet I of2 of the attached Exhibit "B" prepared April 9, 2001, by the aforesaid
Hartman & Associates, Inc., labeled "Sanitary Sewer Easement Through Lands of
Hampden Industrial Development Authority", but at no time prior to the January 10,
2002, site meeting ever referenced or provided by Penn DOT to Shuler, depicts the
involved area of Shuler's property and the location thereon of the "Required Easement
for Sanitary Sewer Relocation". Sheet 2 of 2 of attached Exhibit "B" provides a larger
scale blow-up of the cross-hatched "Required Easement for Sanitary Sewer Relocation"
together with the dotted areas designating "Temporary Easement for Construction", all of
the foregoing relating to the instant Shuler property.
(By way of clarification, the Hampden Industrial Development Authority is legal
owner ofthe subject real estate; Condemnee Mickey C. Shuler is the equitable owner and
moving Condemnee in the instant claim).
12. Exhibit "B" depicts those areas required for the permanent easement for
sanitary sewer relocation and temporary easement for its construction, both of which are
situate outside of, beyond, and in addition to those areas designated as "Required Right-
Of-Way" and "Temporary Construction Easement (Access)" on Penn DOT's "plan of
condemnation", Exhibit "A", and thus, impose additional easements on and acquire
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further interests in real estate from Condemnee Mickey C. Shuler, not previously the
subject of Penn DOT's Declaration of Taking and its "plan of condemnation"
filed and attached thereto.
13. The above paragraphs relating to the relocation of the Camp Hill Borough
sanitary sewer and any and all required easements therefor, whether for relocation and/or
construction thereof, add additional issues for address by Penn DOT as such sanitary
sewer relocation is required by it and to date, no amended Declaration of Taking or "plan
of condemnation" has been proposed to be filed by it nor has it sought to perform a
second or revised appraisal of Shuler's real estate given the additional takings as required
to effect Penn DOT's project (construction and installation of sound barrier walls along
the north side of State Route 581 in the Borough of Camp Hill and the required relocation
of the Camp Hill Borough sanitary sewer lines).
14. As of the date of the within Motion for Continuance, there yet remain
unresolved issues concerning: (1) the relocation of the Camp Hill Borough Sanitary
Sewer on Shuler's property and acquisition of the necessary required easement for
sanitary seWer relocation and temporary easement for construction; (2) the nature of the
activities to be conducted on or within area(s) designated on Penn DOT's plan as
"Temporary Construction Easement", the duration thereof, and usage during the term of
construction; (3) a final resolution of other engineering and construction concerns of
Shuler which relate to the condition and utility of all of his remaining real estate after
Penn DOT's construction is completed and the sanitary sewer relocated; and (4) a final
Agreement regarding that "just compensation" to be paid by Penn DOT to Shuler for the
actual taking of a portion of his commercial real estate and as well, for the impact of all
easements imposed on his remaining property thereafter including "Temporary
Construction, Access and Storage Easements" depicted on Penn DOT's plan (Exhibit
"/1:') as well as the anticipated sanitary sewer easements depicted on Exhibit "B".
15. The Continuance as requested herein will further enable the parties to
refine engineering terms and descriptive notes to be contained on any construction plan,
and any and all engineering data and that which may relate to the relocation of the Camp
Hill Borough Sanitary Sewer and the acquisition of the permanent and temporary
easements on Shuler's property to provide therefor, and the impact those several
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easements may have on Shuler's remaining improved property, and any and all other
issues relating to the instant condemnation proceedings and may well further contribute
to judicial economy in that issues may be narrowed for resolution by the Court, and/or all
issues may well be resolved within the time-frame requested for the Continuance.
16. Given the recent discovery offacts not previously known to Condemnee
Shuler or to the Court as of the date of its October 23,2001, Order of Court, and the
subsequent presentation to Shuler on January 10, 2002, (see para. 11, supra.) of plans
(Exhibit "B") by the Borough of Camp Hill which result from the Penn DOT required
relocation of its sanitary sewer lines and the acquisition of easements therefor, an
extension of the depositions (discovery) deadline is further necessary and hereby
requested.
17. Counsel for Condemnee Shuler has sought the concurrence in the instant
Motion for Continuance of counsel for Penn DOT, who after initially suggesting his
consent, has failed or refused to respond.
WHEREFORE, for the reasons set forth above Condemnee, Mickey C. Shuler,
respectfully requests that this Honorable Court grant the Continuance as requested from
the February II, 2002, currently scheduled Argument Court date, briefing and discovery
schedules.
Respectfully Submitted:
JOSEP(&jl' PC
By: ( f.v
Mark S. Silver, Esquire
Attorney J.D. No. 09825
500 North Third Street, 7th Floor
P.O. Box 1152
Harrisburg, PA 17101
(717) 233-0132
Attorneys for Mickey C. Shuler,
Condemnee/Owner
Date: 1.1. ~" 1. co'\.--
5
RIGHT OF WAY CLAIM INFORMATION
COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION
STATE RTE......IZifL-SEC. NO.~ C'AUP HHI;MM nJUJ>n>f4N/.J COUNTY
PARCEl NO, w; "-HEETNO,----1L...--.CLAlldNO.
PROPERTY OWNER(S) .._~~, """'~- NwMP~'NJ' .AUlNI'JNIfY
GAANTOR(S) ""'"' T _,m"""" mtNIN) t:> .-nM
(HSTlILCT
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COUNTY ROUTC SrenON SHEET
CUMBERLANO 05B1 004R/W 17 OF 17
CAMP HILL BOROUGH
VERIFICATIONCATE
DRAWN BY
SCALE
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TEI,IPORARYCONSTRUCTlONEASEMENT,ANAREA(S)REO\!IREOUNTllTHE
CONSTRUCTION OR WORK INOICATEO BY THE Pl,AN IS COI.IPlETEO. UNlESS
SOONER REVERTEO IN I'IRITING BY THE OEPAR1!.lENT OF TRANSPORTATION.
AlLPROPERTlESAIlEPlOTTEOFRO!.lOEEOSOFRECOOO.RECQROCO
SUBOlVlSlON OR lOT PlANS, GR FROM FIELD SURVEY. PROPERTY LINES wERE
SURYEYEOONLY'MlENDETERlAINEDNECESSARYBYTHEPROFESSION.o.LLAND
SUR'VEYDR RESPONSIBLE FOR THE PROJECT. PRDPERTYUNESNOT
ESTABUStiEO BY FJELD SURvEY WERE PLOTTEOBASEO ON EXlSTlNG
TOPOGRAPHICALFE.o.TURESANOUI,IITEOFIELOOATA.
THIS PROPERTY PLAT IS NOT TO BE suaSTlTUTEO FOR A BOUNOARY SURVEY.
~_REOUIREORIGHTOFWAY
REvISIONS
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DEEDBOOK~OEED
PAGE ---BL- CALCULATED
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CATE OF RECORO---A'l&U- LEGAL RjW
CONSIOERATION...hZ1..61llLEFFECTJVE ~
I.R.S.STAI,IPS TOTALREO'O''-
TOTAL RESIDUE (J.!lSJh..z~
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1493 -
REQUIRED EASEMENT fOR
SANITARY SEWER RELOCATION
TEMPORARY EASEMENT
fOR CONSTRUCTION
NOTE:
PROPERTY SHOWN IS THE RESULT Of A
DEED PLOT AND NOT AN ACTUAL fiELD
SURVEY. WE TAKE NO RESPONSIBILITY
AS TO ITS ACCURACY OR INACCURACY,
'.
SANITARY SEWER EASEMENT
THROUGH LANDS OF
HAMPDEN INDUSTRIAL
DEVELOPMENT AUTHORITY
CAMP HI LL BOROUGH CUMBERLAND CO., PA,
H ART M.A N a ASSOC, INC,
ENGINEERS a SURvEYORS
2101 ORCHA.RD ROAD
CAMP HILL I PENNSYLVANIA 17011
PHONE I (717) 737- 34"
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NOTE~
RIGHT-Of-WAY OFFSETS AND CE.NTERLINE STATIONS AS
SHOWN HEREON, DERIVED THROUGH METRIC/ENGLISH
SYSTEM CONVERSION, AND fROM COMMONWEALTH OF
PENNSYLVANIA D.O,T.,CUMBERLAND COUNTY, S.R. 0581,
SECTION 004 R/W SHEET II OF 17.
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EXIST. M.H.l166
TO BE REMOVED
/
SANITARY SEWER EASEMENT
THROUGH LANDS OF
HAMPDEtoI INDUSTRIAL
DEVELOPMENT AUTHORITY
CAMP HILL BOROUGH CUMBERLAND CO., PA.
HAR TMAN a ASSOC. INC,
ENGINEERS a SURVEYORS
2101 ORCHARD ROAD
CAMP HILL 1 PENNSYLVANIA. 17011
PHONE I (117) 737- 3.9&
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DATE. APR.9 OJ
REVISED DArE(S) I
REQUIRED EASEMENT FOR SANITARY
SEWER RELOCATION 2,622.81 SQ. FT.
0.0602 ACRE
TEMPORARY EASEMENT FOR COSTRUCTlON
SCALE- Ill:: 201 .
""lIVE" '001t - 1143
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VERIFICA TION
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I, Mark S. Silver, Esquire, hereby affirm, subject to the penalties of 18 Pa. C.S. 94904
relating to unsworn falsification to authorities, that I am attorney for Condemnee,
Mickey C. Shuler whose property is the subject of the instant condemnation and that I am
authorized to make this Verification, and that the statements contained in the foregoing
MOTION FOR CONTINUANCE are true and correct to the best of my present knowledge,
information and belief.
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Mark S. Silver
Date: 1.t... ~10> 1-Q0'-
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IN RE: CONDEMNATION BY
THE COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION, OF RIGHT OF
WAY FOR S,R. 0581, SECTION 004,
R1W, IN THE TOWNSHIPS OF
HAMPDEN AND LOWER ALLEN
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No, 01-587 CIVIL TERM
MICKEY C. SHULER,
Condemnee
v.
CIVIL ACTION - LAW
COMMONWEALTH OF
PENNSYL VANIA,
DEPARTMENT OF TRANSPORTATION,:
Condemnor
EMINENT DOMAIN PROCEEDINGS
CERTIFICA TE OF SERVICE
1, Mark S. Silver, Esquire, attorney for Condemnee, do hereby certifY that on this
date I served the foregoing MOTION fOR CONTINUANCE by having placed a true
and correct copy of same in the United States Mail, First Class, postage prepaid,
deposited at Harrisburg, Pennsylvania, addressed to counsel for Penn DOT as follows.
Christopher J. Clements, Esquire
Assistant Counsel in Charge
Commonwealth of Pennsylvania
Department of Transportation
Office of Chief Counsel
P.O. Box 8212
Harrisburg, PA 17105-8212
J
Mark S. Silver, Esquire
Attorney I.D. No. 09825
500 North Third Street, 7th Floor
P.O. Box 1152
Harrisburg, PA 17101
(717) 233-0132
Attorneys for Mickey C. Shuler,
Condemnee/Owner
Date: 1.\. ~.. ).e>",,....
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02 JAN 22 AM 9: 13
CUMBERLAND COUNTY
PENNSYLVANIA
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COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
OFFICE OF CHIEF COUNSEL
By: Christopher J. Clements
Assistant Counsel in-Charge
Supreme Court LD.# 44699
P,O, Box 8212
Harrisburg, PA 17105-8212
(717) 787-3128
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF RIGHT-OF-WAY FOR S.R. 0581,
SECTION 004 R/W, IN THE BOROUGH OF
CAMP HILL AND THE TOWNSHIPS OF
HAMPDEN AND LOWER ALLEN
CML ACTION-- LAW
MICKEY C. SHULER,
Condemnee
No. 01-587 CIVIL
v.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
EMINENT DOMAIN
PROCEEDINGS--IN REM
Condemnor
ANSWER TO RULE TO SHOW CAUSE REGARDING CONTINUANCE
AND NOW, this 5th day of February, 2002, the Commonwealth of Pennsylvania, Department
of Transportation, condemnor (Department), by its attorney, Christopher J. Clements, Assistant
Counsel in-Charge, Right of Way Section, respectfully represents as follows:
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1. The highway project in this case concerns the construction of a large sound barrier
(known as "Wall C-2") along S.R. 0581, the Harrisburg Expressway, adjacent to Shuler's property.
A sound barrier at that location will provide noise mitigation to approximately 50 residential
properties on the north side of the Harrishurg Expressway in Camp Hill Borough between 19th Street
and 31 st Street. See Exhibit 3 attached to the Answer of the Defendant to Preliminary Objections
Filed to the Declaration of Taking, filed July 19, 2001.
. 2. Construction of the remainder ofthis noise mitigation project has already begun on
both the north and south sides of the Harrisburg Expressway. The construction of Wall C-2 has
already been delayed one (1) full construction season as a result of this litigation. This matter must
be concluded in some manner (settlement or otherwise) by the end of February, 2002, or a second
entire construction season for this project will, in all probability, be lost.
3. Shuler's motion for continuance is incomplete in two critical respects: first, Camp
Hill Borough, and not the Department, is the entity with legal authority to acquire substitute rights of
way for its sewer easement (paras. 10-14); second, the Department did consent to a continuance only
if Shuler notified this Honorable Court of the entire status of settlement negotiations in this matter,
including the facts that a conditional monetary settlement had been reached. The Department has
met, in good faith, the conditions that are under its control. Shuler failed to note this in its motion
(para. 17). The allegation that the Department has "failed or refused to respond" is particularly
lacking in candor to this Court as its position on the continuance was clearly set forth in writing.
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4. The Department's design engineer has drafted a plan regarding the temporary
construction easement (TCE). The TCE plan is the best and final offer regarding that condition of
settlement. Camp Hill Borough has confirmed in writing that it is the entity responsible for
acquiring sewer easement rights; the Department will reimburse the Borough for the right of way
costs.
5. Paras. 10, 12, l3and 14 of Shuler's preliminary objections are improper as a matter
oflaw. See Department's Motion to Strike Improper Preliminary Objections, filed on or about
October 16, 2001. The Department desires to preserve the argument date of February 11, 2002, to
address the motion to strike. Alternatively, the Court is respectfully requested to preserve the
February 11 date for a mandatory settlement conference in order to avoid additional delay.
WHEREFORE, for all of the foregoing reasons, the. Commonwealth of Pennsylvania,
Department of Transportation, condemnor, respectfully requests this Honorable Court to deny the
motion for continuance and enter the attached proposed order directing the parties to address the
Department's motion to strike or, alternatively, conduct a mandatory settlement conference on
February 11, 2002.
Respectfully submitted,
Attorney for the Condemnor
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION
OF RIGHT OF WAY FOR S.R. 0581,
SECTION 004 R/W, IN THE BOROUGH OF
CAMP HILL AND THE TOWNSHIPS OF
HAMPDEN AND LOWER ALLEN
CIVIL ACTION -- LAW
MICKEY C. SHULER,
No. 01-587
Plaintiff
v.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Defendant
EMINENT DOMAIN
PROCEEDINGS -- IN REM
CERTIFICATE OF SERVICE
I certify that I am serving the attached Answer to Rule to Show Cause Regarding
Continuance upon the person and in the manner as set forth below, which service satisfies the
requirements ofPa.R.C.P. 440:
BY FIRST CLASS MAIL:
Joseph A. Klein, Esquire
500 North 3rd Street, 7th Floor
Harrisburg, PA 17101
Attorney for the Defendant
Dated: 5 February 2002
OF
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
INRE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF RIGHT OF WAY FOR S.R. 0581,
SECTION 004 R/W, IN THE TOWNSHIPS OF
HAMPDEN AND LOWER ALLEN
CIVIL ACTION -- LAW
MICKEY C. SHULER,
Condemnee
No. 01-587 CIVIL TERM
v.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
EMINENT DOMAIN
PROCEEDINGS--IN REM
Condemnor
ORDER
AND NOW, this _ day of February, 2002, upon review of the Condemnee's Motion for
Continuance and the Condemnor's Answer thereto, it is ORDERED and DIRECTED as follows:
The parties shall appear as directed in accord with the Order of this Court dated October 23,
2001, to address the issue of the Motion to Strike Improper Preliminary Objections or, alternatively,
to conduct a mandatory settlement conference in accord with the settlement discussions as
represented to this Court.
BY THE COURT,
cc: Joseph A. Klein, Esq.
Christopher J. Clements, Esq.
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MICKEY C. SHULER,
Condemnee
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
v.
CIVIL ACTION - LAW
COMMONWEALTH OF
PENNSYL VANIA,
DEPARTMENT OF
TRANSPORTATION,
Condemnor
NO. 01-587 CIVIL TERM
ORDER OF COURT
AND NOW, this 7th day of February, 2002, upon consideration of the
Condemnee's Motion for Continuance of Briefing, Argument Court, and Discovery
Schedule Pursuant To Pa. R.C.p. 216, and of Condemnor's Answer to Rule To Show
Cause Regarding Continuance, the rnotion is denied.
BY THE COURT,
Wesley Ole
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Mark S. Silver, Esq.
500 North Third Street
7th Floor
P.O. Box 1152
Harrisburg, PA 17101
Attorney for Condemnee
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Christopher J. Clernents, Esq.
Assistant Counsel
Office of Chief Counsel
Department of Transportation
P.O. Box 8212
Harrisburg, PA 17105-8212
Attorney for Condemnor
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MICKEY C. SHULER,
Condemnee
v.
COMMONWEALTH OF
PENNSYL VANIA,
DEPARTMENT OF
TRANSPORTATION,
Condemnor
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
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NO. 01-587 CIVIL TERM
ORDER OF COURT
AND NOW, this 8th day of February, 2002, upon consideration of the attached
letter frorn Mark S. Silver, Esq., attorney for Condemnee, the hearing previously
scheduled for February 11,2002, is cancelled.
Mark S. Silver, Esq.
500 North Third Street
7th Floor
P.O. Box 1152
Harrisburg, PA 17101
Attorney for Condemnee
Christopher J. Clernents, Esq.
Assistant Counsel
Office of Chief Counsel
Department of Transportation
P.O. Box 8212
Harrisburg, PA 17105-8212
Attorney for Condemnor
BY THE COURT,
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CUNiS[FiU.;,iUCOUNTY
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02/08/02 FRI 11:06 FAX 717 233 2516
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J A KLEIN PC
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JOSEPH A.. KLEIN, p.c.
AnOBllll:rs AX LAw
POST OPP~Cl!: Box 1152
HAJilUSBtl:ao. PA 17108
J """"" A. KLm:t.
MAIm: 5. 5ILVllR
(717) """-Ol.)2
FAX: (717) 200 ,2516
Febn""y It, 7.0m
The Honorable J. W""lcy Oler, Jr.
Judge., Cumberland County Court of Common Pleas
Cwnberland County CourthOUb't;:
One C<.>urthouse Square
Carlisle, PA 17013
VIA FACSIMILE (7t 7) 240-6462
AND li'lRST CLASS U.S. MATT.
Re: In R,,: C..nJI!miu:lIion by tb" Commonw"altb of PelUtSyl,'anj",
Deptulm.ent ofTl'ansportatioll, of ldght of Way for
s,R. 0581, Section 004, RIW, Ln th" T""'''l$ltips of llampdeJ'
and Lower Allen
Mickey (.; Shuler, C::olllk1nnee v. Commonwealth of Fennsylvania. Dtparz11fJ!nt
of Transportation, Contiemnt.r
No, 01-587 Civil Term (Cumba/and County)
Dear Judge Oler:
This will confirm that on Febl'llary 7, 2.002, a Settlement Stipulation was entered into by
and bCLwaou UUI' eUcuL, Miektoy C. Shuler, CO..:lcllUloo., and the Conunonwcalth of I'CIIIlSylvania,
Dcpartment of Transportation, Condemnor, which Settlement Stipulation serves to conclude those
matters which would have otherwise been argUl:d before you on Monday, February 11,2002.
Therefore, and with the concurrence of Christopher J. Clements, Esquire, counsel on
hehalf of Condemnor Conunonwealth ofPcnnsylvania. Department of Transportation, Argument
will no longer be necessary as the matters between the parties have been resolved.
~J~' 11 yours,
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Bnclotures
Ce. Clujstopher J. Clement$, tlsquirc (Vi" I'aeilimilc and U.S. Mnil)
IN RE: CONDEMNATION BY
THE COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION, OF RIGHT OF
WAY FOR S,R. 0581, SECTION 004,
R/W, IN THE TOWNSIDPS OF
HAMPDEN AND LOWER ALLEN
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No, 01-587 CIVIL TERM
MICKEY C. SHULER,
Colldemnee
v,
CIVIL ACTION - LAW
COMMONWEALTH OF
P~NNSYL VANIA,
DEPARtM~NT OF TRANSPORTATION,:
Condemnor
EMINENT DOMAIN PROCEEDINGS
PRAECIPE TO WITHDRAW CONDEMNEE MICKEY C. SHULER'S
PRELIMINARY OBJECTIONS FILED TO DECLARATION OF TAKING AND
TO SETTLE AND DISCONTINUE CASE ON THE DOCKET
TO THE PROTHONOTARY:
Please note on the docket that Condemnee Mickey C. Shuler's Preliminary
Objections filed to Condemnor Commonwealth of Pennsylvania, Department of
Transportation's Declaration of Taking are hereby withdrawn.
Please also mark the above-captioned action "Settled and Discontinued" on the
docket.
Respectfully Submitted:
By:
Date: 1 ~z. ~ - 01.--
ark . Silver, Esquire
Attorney LD. No. 09825
500 North Third Street, 7th Floor
P.O. Box 1152
Harrisburg, P A 17101
(717) 233-0132
Attorneys for Mickey C. Shuler,
Condemnee/Owner
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