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HomeMy WebLinkAbout01-0587IN 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 004RYW, IN THE BOROUGH OF CAMP HILL AND THE TOWNSHIPS OF HAMPDEN AND LOWER ALLEN EMINENT DOMAIN PROCEEDING IN REM DECLARATION OF TAKING 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 Depmhnent 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, condenmation 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. 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, 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 in 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 afl.mn 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 condemed from the properties identified on the attached Schedule of Property Condemned, as indicated on the plans referenced in paragraph 7 above. Chief, Right-of-Way and Utilities Division 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 004RJW, IN THE BOROUGH OF CAMP HILL AND THE TOWNSHIPS OF HAMPDEN AND LOWER ALLEN DECLARATION OF TAKING Smart A. Liner Assistant Counsel ID No. 15290 Commonwealth of Pennsylvania Depmm,ent of Transportation Office of Chief Counsel P.O. Box 8212 Harrisburg, PA 17105-8212 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 004RAV, 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, Condemnor in the above- captioned proceedings. Stuart A. Liner Assistant Counsel 0 0 RW437 (10/99) REMIS Proj. No. County Fed. Proj. No. Municipalities Route-Sec. Parcel Claim No. Number 11 21000720000 080063 Cumberland 100% State Camp Hill, Lemoyne, Hampden, Lower Allen 0581-004 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 R- Plan now recorded in Recorder's Office Name, Mailing Address, Property Interest of Condemnees, and Location of Condemned Property David T. Latsha 1141 Columbus Ave. Lemoyne, PA 17043 Location: Deed Book 174, Page 975 Attached Exhibit Number *Type of (if any) Description n/a R Page lofl Plan (if any) Recorded in Cabinet 3, Drawer 1, Page 134, sheets 12 & 16 52 21000890000 Lawrence Robert Jameson and Jeannie Y. Jameson, h/w 90akwood Circle Camp Hill, PA 17011 Location: Deed Book U 28, Page 857 n/a R Cabinet 3, Drawer 1, Page 134, sheets 7 & 14 96 21001200000 Hampden Industrial Development Authority, A Subsisting Association (owner) William B. Boles, CEO 230 So. Sporting Hill Road Mechanicaburg, PA 17055 n/a R Cabinet 3, Drawer 1, Page 134, sheet 17 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. Owner Unlocateable Location: Deed Book 14 D, Page 180 n/a R Cabinet 3, Drawer 1, Page 134, sheets 11 & 14 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 004IUW, IN THE BOROUGH OF CAMP HILL AND THE TOWNSHIPS OF HAMPDEN AND LOWER ALLEN NO. O/-~5'-~? TERM, 200/ 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 31ht~,,,'t~t?. 2~, Z~o/ , was recorded in the office of the RecorderofDeedsoftheaboveeountyin ,Fh~'~, ~'ooA" ~g3- ,Page(s) 2e/'o 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 District Right 9fe~/ay Administrator Engineering District No. 8-0 RW437 (10/99) REMIS Proj. No. County Fed. Proj. No. Municipalities Route-Sec. Parcel Claim No. Number 11 21000720000 O80063 Cumberland 100% State Camp Hill, Lemoyne, Hampden, Lower Allen 0581-004 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 R- Plan now recorded in Recorder's Office Attached Name, Marling Address, Property Exhibit Interest of Condemnees, and Number Location of Condemned Property (if any) David T. Latsha fda 1141 Columbus Ave. Lemoyne, PA 17043 'Type of Description R Location: Deed Book 174, Page 975 Page lof 1 Plan (if any) Recorded in Cabinet 3, Drawer 1, Page 134, sheets 12 & 16 52 21000890000 Lawrence Robe~ Jameson and JeannieY. Jameson, h/w 9Oakwood Circle Camp Hill, PA 17011 Location: Deed Book U 28, Page 857 n]fl R Cabinet 3, Drawer l, Page 134, sheets 7 & 14 96 21001200000 Hampden Industrial Development Authority, A Subsisting Association (owner) William B. Boles, CEO 230 So, Sporting Hill Road Mechanicaburg, PA 17055 n/a R Cabinet 3, Drawer 1, Page 134, sheet 17 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. Owner Unlocateable Location: Deed Book 14 D, Page 180 n/a R Cabinet 3, Drawer 1, Page 134, sheets I 1 & 14 RW432 (03/99) 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 NO. 01-587 CIVIL TERM, EMINENT DOMAIN PROCEEDING IN REM PROOF OF SERVICE COMMONWEALTH OF PENNSYLVANIA : COUNTY OF CUMBERLAND : David B. Reynolds, being duly sworn according 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 condemnees affected thereby in compliance with Article IV, Section 405, of the Eminent Domain Code, Act June 22, 1964, P.L. 84, as amended. A schedule of the condemnees so notified is attached hereto and made part hereof. District Right-O-Way Administrator Sworn to and subscribed before me My Commission Expires: RW437 (10/99) REMIS Proj. No. County Fed. Proj. No, Municipalities Route-Sec. Parcel Claim No. Number 11 21000720000 080063 Cumberland 100% State Camp Hill, Lemoyne, Hampden, Lower Allen 0581-004 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 R- Plan now recorded in Recorder's Office Attached Name, Mailing Address, Property Exhibit Interest of Condemnees, and Number Location of Condemned Property (if any) David T. Latsha fda 1141 Columbus Ave~ Lemoyne, PA 17043 'Type of Description R Location: Deed Book 174, Page 975 Page lof 1 Plan (if any) Recorded in Cabinet 3, Drawer 1, Page 134, sheets 12 & 16 52 21000890000 Lawrence Robert Jameson and JeannieY. Jameson, h/w 9OakwoodCircle Camp Hill, PA 17011 Location: Deed Book U 28, Page 857 R Cabinet 3, Drawer 1, Page 134, sheets 7 & 14 96 21001200000 Hampden Industrial Development Authority, A Subsisting Association (owner) William B. Boles, CEO 230 So, Sporting Hill Road Mechanicaburg, PA 17055 fda R Cabinet 3, Drawer 1, Page 134, sheet 17 Mickey C. Shuler (equitable owner) 332 Belle Vista Drive Marysvflle, PA 17053 AS THEIR INTERESTS MAY APPEAR Location: Deed Book M 30, Page 676 97 21001210000 Welbilt Homes, Inc. Owner Unlocateable Location: Deed Book 14 D, Page 180 n/a R Cabinet 3, Drawer 1, Page 134, sheets 11 & 14 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 R/W, IN THE BOROUGH OF CAMP HILL AND THE TOWNSHIPS OF HAMPDEN AND LOWER ALLEN : NO. 01-587 CIVIL : EMINENT DOMA1N PROCEEDINGS : IN REM Claim No.: 21001200000 PRELIMINARY OBJECTIONS TO DECLARATION OF TAKING AND NOW, this 2'*'~ day of March, 2001, cornes Mickey 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 pall of the real property of the Owner described in the Declaration of Taking and the exhibits attached 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 tbr 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 oll the Owner on or about February 2, 2001. 2. Owner's property is situate at 19th Street and tile Penn Central Railroad in the Borough of Camp Hill, Cumberland County, Pennsylvania and consists of a aA of an acre tract, more or less, improved by an office building and warehouse containing approximately 5,300 square feet which is leased to Grinnell Fire Protection Systems Company, Inc. 3. Shuler is equitable owner of said property pursuant to an agreement entered into with the Hampden Industrial Development Authority, which 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 acquire property for transportation purposes." 5. The Declaration of Taking filed by PennDOT avers in Paragraph 8 thereof that: "The nature of the title hereby condemned is tee simple and temporary construction easements." 6. Paragraph 5 is denied in that the articulated purpose by PennDOT for the within condemnation is tbr the construction of a sound barrier l-hr Route 581 which Route had been constructed 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 construction easements" but fails to set forth the time frame within which the temporary construction 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 acquire more of Owner's property than that reasonably required for its alleged "transportation purposes". 9. In order tbr tractor trailers and trucks to access the office building and warehouse constructed on Condemnee's property, it is necessary for said vehicles to use all of the area of 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 2 merchandise and material located in the aforesaid leased office building and warehouse. 10. As the effect of both the location and configuration of Condemnor's proposed fee simple taking and temporary construction easements is such that the tractor-trailer and truck access to Condemnee's warehouse is obstructed, the same renders such real estate useless for said purpose. 11. The Lease Agreement entered into between Condemnee and Grinell Fire Protection Systems Company, Inc. under date of Jamlary, 1985, which was extended on January 30, 1995 provided in Paragraph I1 thereof that: I 1. 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... (c) 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, lfLessee shall not exercise 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 condemnor and rent shall abate in proportion to the square feet of leased space taken or condemned, and Lessor shall have the responsibility of placing the office building and warehouse in usable condition if the same becomes necessary as a result of the taking or condemnation. 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 effect of the filing of its Declaration of Taking would be to substantially interfere with the utilization of Condemnee's office building and warehouse by obstructing the free ingress and egress to the same by tractor trailers and trucks delivering and picking up materials and merchandise, PennDOT has refi~sed to move back the line for its taking in fee simple and/or eliminate its temporary construction easement and has thus acted in an arbitrary and capricions manner thereby adversely affecting the economic viability of said structure causing a substantial loss off:air market value to Condemnee's buildings and remaining land. 13. Under date of January 30, 2001, Peru',DOT 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 of the Constitution of the United States and that of the Commonwealth of Pennsylvania which provide: ...nor shall private property be taken or applied to public use, without authority of law and without jnst compensation being first made or secured. And it is in further violation of the provisions of the provisions of the Pennsylvania Eminent Domain Code, which require that condemnors such as PennDOT offer their condemnees that amount of money which represents a bona fide estimate of.just compensation. 14. The purported condemnation is void as not having been made in good faith and for the reasons previously set forth, will cause inordinate economic detriment to Owner beyond that which the public need constitutionally permits or requires. 15. The purported taking of the property of the Owner is a gross abuse of discretion, is arbitrary and capricious as constituting a taking of more of Owner's property than the public need reasonably requires fro' the purposes averred in the instant Declaration of Taking, and is not in accordance with sound engineering practices consonant with the requirements of due process of law and is, in addition thereto, beyond what the public need constitutionally permits or requires. 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 discovery to be undertaken in conjunction with these proceedings. WHEREFORE, the Owner, Mickey C. Shuler, Condemnee in the instant action, respectfully 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, Depm~rment of Traasportation ("PennDOT") and to assess an award against said Condemnor and in favor of the Owner for damages under the provisions of§1-406 and § 1-408 of the Eminent Domain Code, Act of June 22, 1964, P.L. 84, Art. IV, 26 P.S. §§1-406 and 1-408, as amended. Respectfully submitted, ,Ioseph A. Klein, P.C. (717) 233-0132 Attorney for Owner/Condemnee VERIFICATION 1, 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 t~act in the fbregoing PRELIMINARY OBJECTIONS TO DECLARATION OF TAKING are true and correct to the best of my present knowledge, information, and belie£ Mickt~,. ~ ~er~ ~///~f Date: 3lo~. lOl Exhibit I EXTENSION OF LEASE AGREEMENT THIS AGREEMENT (this "Agreement"), is made this o~- / _ day of December, 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 ((om~rly known as Griunetl Fire Protection Systems Company, Inc.) entered into a lease for the premises located at 1909 State Street (formerly known as 19th Street and Penn Central Railroad) (thc "Lease") fora term beginning February 1, 1985, and expiring January 31, 1990; and WHEREAS, said Lease ,,vas renewed for an additional term of five years for tile pcriod from February 1, 1990, to January 31, 1995; WHEREAS, said Lease ,,vas rencwed lbr an additional tcrrn of live yem's Ibr thc period I?om February I, 1995, to January 31,2000; and WHEREAS, the parties hereto wish to extend the Lease on the terms hereinafter stated. NOW, THEREFORE, in consideration of the mutaal covenants and agrccments herein contained, the parties hereto hereby agree as follows: The Lease is extended For an additional term of five (5) years from Fcbruary I, 2000. through January 3 t, 2005, at an annual rent of'Eighteen Thousand N/ne llundrcd Seventy-Seven and 28/10(I Dollars ($18,977.28), payable in equal monthly instalhncets of One Thousand Five Hundred Eighty-one and 44/100 Dollars ($1,581.44). commencing on February 1,2000, and eontimting on the first day of each month during the remah'~cler of said lenn. It ~s expressly nnderstood thai except as provided for in Pm-agraph 1 above, all et' fiqe terms, covenants, conditions, provisions, and agreements contained in thc I.ease shall be aad remain in full force and effect. This Agreement is b/nd/rig upon the heirs, executors, administrators, successors and assigns o I' Ibc respective parties hereto, IN ~]ITNESS WHEREOf', thc parties hereto have set their hands a~td seals as ol~the day and year first above written. GR1NNE1.L CORPORATION Its Senior Vice-President SHULER & SHULER By: / EXTEINSION OF LEASE AGREEMENT THIS AGREEMI~NT (this "Agreement"), is made this ._~ day of January, 1995, by and between SHT..YLER & StCt. YLER, a General Partnership ("Lessor"), and GRINNELL COP,.P OiLATION ("Lessee"). WITNESSETH W'I-'IERI~AS) on the 25th day of January, 1985, Lessor and Lessee (formerly known aa Grittnel[ 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 Februaxy 1, 1990, to January 31, 1995; and WHEREAS, the parties hereto 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: The Lease is ex-tended for an additional term of five (5) years from Februm3, 1, 1995, through January 31, 2000, at an annual rent of Sixteen Thousand Nine lylundred Forty- Four Dollars ($16,944.00), payable in equal monthly installments of One Thousand Four Hundred Twelve Dollars ($1,412.00), commencing on February 1, 1995, and continuing on the first day of each month during the remainder of said term. It is expressly understood that except 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 thc respective parties hereto. IN WITNESS WI-IEREOF, the parties hereto have set their hands and seals as of the day and year first above written. GRINNELL CORPORATION Bernard J'. Doll~y Its Senior Vice-President/ SHULER. & SHULER By: LEASE AGREEMENT THIS LEASE AOREEMENT, 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 Orive, 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 (314) of an acre, more or l~ss, 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 "premises", 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 condit.ions 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 Oanuary 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 (i967 100). 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 sdvance~ 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 1. The term of this Lease Agreement shall be for five years commencing on the 1st day of February, 1985, and ter- minating on the 31st day of Oanuary, 1990. (5) 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 originaI term, for an additional pmriod of five years from February l, 1990 to Oanuary ~l, 1~95, under the same terms, conditions, and covenant~ 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. Oepartment of Labor, Bureau of Labor Statistics, U.S. City Average, all terms (i9~7 100). 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 ($1~,250.00), Oollars payable in twelve (12) equal monthly installments, each of Eleven Hundred Four and l?/lO0 Dollars ($1,104.1~), in advance, on or before the first day of each and every calendar month during the term hereof. ~. 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 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 Z~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 temsor 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: 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) (c) 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. Cleaning, Repairing, etc.: Keep the demised premises olean 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 ~epair as they a~e 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 '-to time designate by notice in writing. 5. Affirmative Covenants of Lessee Lessee covenants and agrees that it will witRout 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) (c) 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 fall, 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 teaser's rights. 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 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 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. - 2 - (d) Requirements of Public Authorities: Comply with any requirements of any of the constituted 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 prem£ses~ and save Lessor harmless from penalties, fines, costs or damages resulting from failure so to do. (e) Fire: Use every reasonable precaution against fire. 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. (g) (h) 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 consent in writing of Lessor' first had and obtained, which consent shall not be unreasonably withheld. the (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) 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. (b) 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 elect 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. (c) In the event of the failure of Lessee within a any accidents, due or allege~ to be due to any accumu- lations of snow and ice. ~. Negative Covenants of Lessee: Lessee covenants and agrees that It wiil do none of the foilowing things without consent in writing of Lessor' first had and obtained, which consent shall not be unreasonably withheld. the (a) Use of Premises: Occupy the demised premises in any other manner or for any other purpose than as above set forth. 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: Inspection of Premises: At all reasonable times by ltself or its duly authorized agents to go upon and inspect the demised premises and every part thereof. (a) Sale or Rent Sign:- Prospective Purchasers or Tenants To display e "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 elect 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. (b) 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- vlded, the Lessor may go upon the premises and perform such maintenance and repair, and the cost thereof, at (c) the sole option of Lessor, to be charged to the Lessee as additional rent. agrees (a) Affirmative Covenants of Lessor Lessor covenants and that it will: Oeliver 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 ail 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 whlch could rlpen 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, judgments, loss, cost or expense by reason of any injury or death to persons or damage to property includfng 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. lO. 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 partic£pate 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 edutpment. Lessor further agrees to obtain from the guarantors and warrantors any necessary acknowledgment of and agreement to such assignments. It is agreed that Lessor shalI, 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 £mmediately notify the other thereof on receipt of risk of its tenancy of the premises and Lessee agrees to pro- tect and save harmless Lessor from claims, judgments, 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 }eased 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- tog 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 all notices, summons, judgments, orders and of (a Either party may, at its own expense, proceed to take a part in the condemnation action or proceedings. The (b) 12. (a) (b) 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. In the event that the demised premises are taken or condemned in their entirety, the Lease shall forth- with terminate and the rent cease. 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 part/al 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 tNe 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 respoos£blity 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 bessor.by reason of the complete or partial taking of the demised premises. Notwith- standing the foregoing provisions hereof, Lessee does 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. 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 p[to~ 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 ~[ r~pa~rs, taking into (b) not assign to LesSor any damages payable for ti) 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. 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 Oetermine 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 loss of property to Lessor or any contractor or his employees on the premises in connection with repair of the premises after a fire or other casualty. (c) 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 Right to Erect Interior Alterations: Lessee shall have th~'right, power and privilege to erect temporary partitions, including office partitions, or to alter existing partitions as 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, lm 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 De 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 ~eface 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 covenante~ 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 ' thereof. Lessee shall not be ~nder any o~liga~ion~ 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- mitred 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 previsions 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 anO provisions strictly in accordance with the same shall not be - 6 - 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. l~. Oefault: The following shall be acts of default: 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 (30) days after receipt of written notice such rent or other charge, expense or cost is due. (b) (c) 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 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 instituted 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 Lo 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 any State or Federal Law be institute~ by or against one of the parties, or if the real or personal property of one of the parties shall De 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 (J) 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 alternatej 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 fault to exist): (l) 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- · 'signee 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 given to either party and all rights and remedies given to it by law and equity shall be cumulative and concurrent. 1~. Notices All notices required to be given by the terms of this Lease shall be as follows: lo Lessor: 5huler & Shuler 15 Mountain View Orive Enola, Pennsylvania 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 underle% or sublease the demised premises, or any part (lit) Lessor as Lessee's agent may le&se said premises or any part or parts thereof to such other person or persons which may in tessor'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 given to either party and all rights and remeqies 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 ea~ ~hall be as follows: TO Lessor: Shuler & 5huler 15 Mountain View Drive Enola, Pennsylvania To Lessee: Grinnell Fire Protection Systems Company, Inc. 10 Dorrance Street Provldence~ Rhode Island 0290~ 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 - 8 without such consent no such assignment, mortgage or pledge shall be valid. In the event the Lessor's written consent ts given to an assignment, subletting or underletting, the Lessee shaIi, nevertheless, remain liable to perform all covenants and conditions thereto and to guarantee such performance by 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 that there are no promises, agreements, conditions or understandings, either oral or written, between them other than are herein set forth. It ts 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 W,'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- menb next due. Insurance premiums at the beginn£ng and end of the term of this Lease shall be apportioned. Lessee shall at all times maintain liability insdrance 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,OOO in ease of property damage, which insurance shall be lssued 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. Ar~£tration: 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 (~IO,OOC. O0) Dollars, it shall De determined by a single arbitrator~ Whenever any such controversy or claim involves an amount o? Ten Thousand ($10,000.00) Dollars, or more, it shall be sumbitteO to a panel of three (~) 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- ~nzs Lease shall be apportioned. Lessee shall at all times maintain liability insdrance naming Lessor as an insured with insured limitations of at least $200,000/$500,000 in case o¢ 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. Ar6itration: 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 submitteq, 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 ($1g,ggO.gO) 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 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 (hereby . ATTEST: SHULER & SHULER By ATTEST: GRINNELL FIRE PROTECIION SYSTEMS COMPANY, INC. Secretary 8y Vice President CERTIFICATE OF SERVICE I, JOSEPH A. KLEIN, ESQUIRE, attorney For Condemnee, do hereby certify that on this date I served the Foregoing PRELIMINARY OBJECTIONS TO DECLARATION OF TAKING 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: Bradley L, Mallory Secretary Commonwealth of Pennsylvania Department of Transportation The Keystone Building 400 North Street, 9* Floor Harrisburg, PA 17101 Joseph A. Klein, P.C. e7th Floor Harrisburg, PA 17101 (717) 233-0132 Attorney fbr Owner/Condemnee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE: CONDEMNATION BY THE : No. 01-587 CIVIL 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 : : : EMINENT DOMAIN ROCEEDINGS-IN REM CLAIM NO. 21001210000 ORDER OF COURT AND NOW, I~ L3 ~ ~t ~6~ ( , 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: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE: CONDEMNATION BY THE : No. 01-587 CIVIL 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 : : EMINENT DOMAIN ROCEEDINGS-IN REM CLAIM NO. 21001210000 TO THE HONORABLE, PETITION TO DEPOSIT ESTIMATED JUST COMPENSATION 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. 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 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, 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 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE: CONDEMNATION BY THE : No. 01-587 CIVIL 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 : : ~.bVtN~..i~P DOMKTN ROC~.~..DYNG$-TN R~.M CLAIM NO. 21001210000 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 postad on the property January 30, 2001 and notice was p~lishe4 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 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. 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 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. 1N 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 ChAIM NO. 21001210000 : No. 01-587 CIVIL 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 p%k~lish~d 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 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. 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 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. COMMONVfEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL Christopher J. Clements, Assistant Counsel in-Charge Right of Way Section Supreme Cou~t I.D. 844699 P.O. Box 8212 HARRISBURG, PENNSYLVANIA 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 CWIL ACTION -- LAW HAMPDEN INDUSTRIAL DEVELOPMENT AUTHORITY and MICKEY C. SHULER, Plaintiffs COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Defendant No. 01-587 EMINENT DOMAIN PROCEEDINGS -- IN REM PRAECIPE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of the condenmor, Commonwealth of Pennsylvania, Department of Transportation, the defendant in the above-captioned matter. CIi~istoph~ J/Clements, ~(q. Attorney for the Defendant 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, 1N THE BOROUGH OF CAMP HILL AND THE TOWNSHIPS OF HAMPDEN AND LOWER ALLEN CIVIL ACTION -- LAW HAMPDEN INDUSTRIAL DEVELOPMENT AUTHORITY and MICKEY C. SHULER, Plaintiffs COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Defendant No. 01-587 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 Dated: 27 April 2001 Respectfully submitted, ormcg Asst. Cou~el in-Charge Attorney for the Defendant 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-$128 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA 1N 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, V. Condenmee : No. 01-587 CIVIL COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, EMINENT DOMAIN PROCEEDINGS--IN REM Condenmor : ANSWER OF THE DEFENDANT TO PRELIMINARY OBJECTIONS FILED TO THE DECLARATION OF TAKING AND NOW, this 19th day of July, 2001, the Commonwealth of Peunsylvania, Depa~htient of Transportation, condemnor, by its attorney, Christopher J. Clements, Assistant Counsel in- Charge, Right of Way Section, respectfully represents as follows: 1, Admitted. 2. Admitted. 3. AdmiRed. 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 1, at paras. 3, 5. 5. Admitted. By way of further reply, the recorded declaration of taking contains a Schedule of Property Condemned that, in mm, 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 federal law as a "Type II highway traffic noise abatement" project. 23 CFR Part 772, §772.50). Type II highway traffic noise abatement projects relate to existing facilities such as S.R. 0581 (a 2 four-lane, limited access highway) at the location abutting condenmee'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. Exkibit 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 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. 71 P,S. §§513(e)(1), (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. Department 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 19t~ Street and 31 ~t Street north of S.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 Condenmed which is attached and recorded along with the declaration, provides the following 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 required 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 condenmee 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 of the date of the 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 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 condenmor and not being used in any way by the condernnee. 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 condenmee's paved driveway, storage and parking area. 10. Denied. The condenmor's answer to para. 9, above, is incorporated by reference 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 condenmor is for access as necessary and until construction or work indicated by the plan is completed. 11. Admitted. 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 condenmor'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 stmeture 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 of taking. 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. Department of Transportation, 339 A.2d 892 (Pa. Cmwlth., 1975); In the Matter of Proceeding by Cumberland-Dauphin-Harrisburg Transit Authority for the Condemnation of the ProperW of Alan F, Spurgin, (Cumberland County No. 97-1465, Civil Term, filed October 21, 1998, as per Bayley, $.), at 4-5. 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 condenmee a settlement in the amount of $10,500.00 for a portion of condenmee'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); Townshil~ of Chester v. Depathnent of Transportation, 339 A.2d 892 (Pa. Cmwlth., 1975); In the Matter of Proceeding by Cumberland-Dauphin- Harrisburg Transit Authority for the Condemnation of the Property of Alan F. S~ur~in, (Cumberland County No. 97-1465, Civil Term, filed October 21, 1998, as per Bayley, J.), at 4-5; see also In Re: Condemnation of 110 Washington Street, et al, 136 Montg. Co. L.R. 176, 212 (1999); In Re: Condemnation by the Commonwealth of Pennsvlvania~ Depathnent of Transportation~ of Right of Way for State Route 33, Section 002, a Limited Access Highway in the Townshil~ of Bethlehem (Cbxin), (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 Spurgin and Chrin are attached hereto and made a part hereof as Exhibits 4 & 5, respectively. 14. Denied. The conderrmor's answers to paras. 1-13, above, are incorporated by reference herein and made a part hereof. 15. Denied. The condenmor'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 condenmor 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 condenmee 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 one time and in one pleading). WHEREFORE, for all of the foregoing reasons, the Commonwealth of Pennsylvania, Department of Transportation, condenmor, 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, Attome~ ' for the Condenmor 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 RJW, 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 : CIVIL ACTION -- LAW No. 01-587 EMINENT DOMAIN PROCEEDINGS -- IN REM CERTIFICATE OF SERVICE 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 July2001 Respectfully submitted, OFFICE OF~HI~__F O~I~2~VSEL~j CluS~op!5~r J/Ci'ement s / Asst. Cou~l in-Charge Attorney for the Defendant Exhibit 1 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 EMINENT DOMAIN PROCEEDING IN REM DECLARATION OF TAKING O o O TO THE HONORABLE, THE JUDGES OF THE SAID COURT: ~_.r.~ ~ ';i ~ This Declaration of Taking, based on the provisions of Article IV, Sect 02/~f G rn the Eminent Domain Code, Act of Jnne 22, 1964, P. L. 84, 26 P. S. 1-402, as at~endL~, respectfully represents that: The Condemnor is the Commonwealth of Pennsylvania, Department of Transportation, acting through the Secretary of Transportation. 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 gilt, 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. 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 01MR/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, 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 fights (including fights to gas and oil) in those areas are hereby excepted and reserved fi.om 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 fi'om the Commonwealth. I0. The payment of just compensation in 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 fi.om the properties identified on the attached Schedule of Property Condemned, as indicated on the plans referenced in paragraph 7 above. Chief, Right-of-Way and Utilities Division RW437 ( I 0/99) REMIS Proj. No. County Fed. Proj. No. Municipalities Route-Sec. Parcel Claim No. Number 11 21000720000 O80063 Cumberland 100% State Camp Hill, Lemoyne, Hampden, Lower Allen 0581-004 COMMONWEALTH OF PENNSYLVANIA SCHEDULE OF PROPERTY CONDEMNED (Declaration of Taking) *TYPE OF DESCRIPTION D- Deed Description P- Plan lodged for recording with Notice of Condemnation R~ Plan now recorded in Recorder's Office Attached Name, Mailing Address, Property Exhibit Interest of Condemnees, and Number Location of Condemned Property (if any) David T. Latsha n/a 1141 Columbus Ave. Lemoyne, PA 17043 *Type of Description R Location: Deed Book 174, Page 975 Page lof 1 Plan (if any) Recorded in Cabinet 3, Drawer 1, Page 134, sheets 12 & 16 52 21000890000 Lawrence Robert Jameson and Jeannie ¥. Jameson, h/w 90akwood Circle Camp Hill, PA 17011 Location: Deed Book U 28, Page 857 u/a R Cabinet 3, Drawer l, Page 134, sheets 7 & 14 96 21001200000 Hampden Industrial Development Authority, A Subsisting Association (owner) William B. Boles, CEO 230 So. Sporting Hill Road Mechanicaburg, PA 17055 n/a R Cabinet 3, Drawer 1, Page 134, sheet 17 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. Owner Unlocateable Location: Deed Book 14 D, Page 180 n/a R Cabinet 3, Drawer 1, Page 134, sheets 11 & 14 Exhibit 2 -rlv~ 0NINIYJ.]~I NO 'llVlt, a3~6 ONrlOS ONINIVI]~J Exhibit 3 Exhibit 4 IN THE MA'Fi'ER OF PROCEEDING · : BY CUMBERLAND-DAUPHIN- : HARRISBURG TRANSIT AUTHORITY : FOR THE CON~)EMNATION OF THE : PROPERTY OF'ALAN F. SPURGIN : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 97-1465 CIVIL TERM IN RE: 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. ca 1-101 et seq., 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 served with notice of condemnation, the condemnee may file preliminary obiections 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 97-1465 CIVIL TERM for offering him only $52,000. On that basis he seeks by preliminary objection to strike the declaration of taking, A record has been established in support of Spurgin's preliminary objections which were briefed and argued on October 7, 1998. Spurgin's .510 acre property is located at 1000 State Street in the Borough of Lemoyne, Cumberland County. In 1992, CAT had a regional transportation study conducted by an engineering and planning firm. A recommendation in the study was to establish a transfer center west of the City of Harrisburg across the Susquehanna River in Cumberland County to serve as a central location at which bus routes would converge. The study identified Spurgin's vacant land as a potential site for. 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 construcfion 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. -2- 97-1465 CIVIL TERM his land. When CAT's $52,000 written offer to pumhase 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 Alrportels, Inc., 40 Pa. Commw. 409 (1979), in support of his preliminary objection to the declaration of taking. His reliance on Airportels is misplaced. In Alrportels, 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 iust 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 -3- 97-1465 CIVIL TERM conditioned upon payment to the condemnee or into court of such e~timated just compensation and on such other terms as the court may direct. (b) If within sixty days from the fi!lng of the declaration of taking, the condemnor bas not paid lust 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 compensation due such condemnee as estimated by the condemnor. If the condemnor fails to make such payment the court, upon petition of the condemnee, may compel the condemno{' to file a declaration of estimated just compensation or, if the condemnor fails or refuses to file such declaration, may at the cost ef the condemnor appoint an impartial expert appraiser to estimate such just compensation. The court may, after hearing, enter iudgment fer the amount of the estimated iust compensation. In Airportels, the City of Philadelphia in an alleged de facto taking bf a leasehold interest of the condemnee filed a declaration of estimated just compensation of zero. Airportels then filed a petition alleging that the City's declaration of iust compensation was made in bad faith, and it sought an order to set as{de 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 iudgment was entered in favor of the condemnee in the amount of $4,400,000. In contrast in the case sub iudice, none of the prerequisites set forth in Section 1-407 obligating CAT to file a declaration of estimated lust 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 -4- 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 Relocation Assistance and Real Property Acquisition for Federal and Federally Assisted Programs Act 42 U.S.C. 4601 et seq. 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. Hegedio v. Department of Transportation, 8 Pa. Commw. 551 (1973). Lastly, Spurg~n 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 ~) 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). -5- 97-1465 CIVIL TERM Joseph A, Klein, Esquire For Condemne~ James J, Kutz, Esquire For Condemnor :SS, a IN THE MATTER OF PROCEEDING BY CUMBERLAND-DAUPHIN- HARRISBURG TRANSIT AUTHORITY FOR THE COI~DEMNATION OF THE PROPERTY OF ALAN F. SPURGIN IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, 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 ~-I day of October, 1998, the preliminary objections of the condemnee to the declaration of taking, ARE DISMISSED. By the-Co,~/~..~J Edgar B. Bayley, J~ /- Joseph A. Klein, Esquire For Condemnee James J, Kutz, Esquire For Condemnor ;saa Appendix "A" Exhibit 5 IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY, PENNSYLVANIA CIVIL DIVISION IN RE: AND NOW, this CONDEMNATION BY THE : NO. 1999-CM-3503 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 : /~--~RDER OF COURT "j / C-~dly of April 2000, the Prelinfinary Objections of the Condemnce to the Declaration of Taking are hereby DISMISSED. STATEMENT OF REASONS The Commonwealth of Pennsylvania, Department of Transportation (hereinafter "PcnnDO'l"') proposes to continue Route 33, which currently abruptly ends at its intersection with Interstate 22, to the point in which it would connect with Interstate 78. Charles Chrin (hereinafter "Chrin"), condemnee, owns a piece of property occupied by a restaurant building, a driving range, a minivture golf course, an office building, and a garage ia thc path of the proposed construction. On May 12, 1999, PennDOT filed its Declaration of Taking by which a portion of Chrin'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. At the time of condemnation, the property was occupied by a restaurant building, a driving range, a miniatt~re golf course, an office building, and a garage. The restaurant had been closed and was not operating when tile Declaration of Taking was filed. The property was served by three (3) driveways along William Penn l iighway. On .lune II, 1999, Chrin filed preliminary objections to the Declaration of Taking, asserting that ( 1 ) tile plan filed by the Commonwealth did not correctly depict the size of the restaurant building on the property; (2) the taking results in a denial of adeqt, ate access to remaining property; (3) tile amount offered by the Commonwealth as damages is substantially lower than the damages actually sustained; and (4) the Commonwealth has acted arbitrarily, capriciously, and in bad faith in its offer of compensation. As relief, Chrin asks the court to revest title to him and to order the assessment ofdamages in accordance with Section 408 of tile Eminent Domaih Code, 26 P.S. § 1-408. On July 29, 1999, the Commonwealth moved the court to summarily dismiss tile prelimiuary objections. The court denied the motion and allowed Chrin a period of time to take evidence on the preliminary objections and then place the matter on the argument'list. PennDOT bas taken the deposition of Mr. Cbrin and Cbrin has taken the depositions of several PennDOT employees, a former employee, PennDOT's appraiser and engineering consultant, and Cbrin's appraiser and engineer. The scope of preliminary objections under the Eminent Domain Code is limited. Simco Stores v. Redevelovment Authority, 455 Pa. 438, 317 A.2d 610, 613 (1974). Section 406(n), gives tile Condcnmee tile opportunity to make four (4) challenges to the Declaration of Taking as lbllows: 2 Within thirty days after being served 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 or right of the Condemnor to appropriate the condcmned property unless the same has been previously adjudicated; (2) the sufficiency of the security; (3) any other procedure followed by thc Condemnor; or (4) the Declaration of 'Faking. Failure to raise these matters by preliminary objections shall constitute a waiver thereof. 26 I'.S. § 1-406(a). On February 15, 1999, three months prior to the filing of the Declaration of Taking, PennDOT mailed Chrin a summary of an appraisal which was done on the subject property and an estimate of the compensation to be afforded to CN'in for the area which PennDOT was seeking lo condenm. The total damagcs 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 be $ 1,375,000.00. Chrin's preliminm'y objections note that this $135,600.00 estimate of just compensation fails to compensate him for either the demolition and loss of his restaurant and other facilities and/or thc cost of widening and either overlaying or reconstrncting Hope Road ,-md performing thc site rellguration necessary to access his remaining property through that subslandard road. Pointing to the deposition tcstimony, Clu'in maiutains that hc has established palpable bad faith on the 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 argues that the letter dated January 15, 1999, was a bad lhith offer of esti,nated just compensation made by PennDOT. Contrary to the position of Chrin, the January 15, 1999 summary of compensation to be offered was not an offer of 'est'mated just compensatio ~ ' as that term is uscd in the Eminent Domain Code but was a pre-condemnation attempt by PcnnDO'F to amicably purchase thc property. By contending that the offer to purchase the property was an offer of estimated just compensation, Chrin is ignoring the clear statutory structure in § 1-407, discusscd hereinafter. Initially, we aotc that it has been clearly judicially declared that .,5 406 preliminary objections arc no_~t 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 Department of Transporlation, 20 Cmwlth. Ct. 60, 339 A.2d 892 (1975). In fact, the Commonwealth Court referred to the impropriety of such preliminary objections and the challenge to estimated just compensation by preliminary objections, as being "improper". Id at 895,896. Chrin's effort to raise issues relating to estimated jt st compensation by couching them in the comcxt of PennDOT's "bad faith" is merely an attempt to assert an issue indirectly which cannot be raised directly. The issue has no place in these preliminary objections. Further, based on the language of the January 15, 1999 letter, the fact that it was sent five (5) momhs prior lo thc actual filing of the Declaration of Taking, and the clear statutory language discussed hereafter as to estimated just compensation, the January l 5, 1999 letter was not, and legally could not be, an offer of estimated just compensation. The appropriate section governing issues concerning estimated just compensation is Section 407, which provides as follows: Section 407 - Possession; Entry; Payment of Compensation (u) The Conde,'nnor, after the expiration of the time [bt filing (b) (c) preliminary objections by the Condcmnec to the declaration of 'Faking, shall be entitled to possession or right of entry upon payment of', or a written offer to pay to the Condcmnee, the amount of just compensation as estimated by thc Condcmnor. I1' a Condemnee thereafter rel'uses to deliver possession or permit right of entry, the prothonotary upon praecipe of the Condemnor shall issue a rule, returnable in live days after service upon thc Condemnee, to show cause why a writ o£ possession should not issue, upon which thc 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 filin~ of the declaration of taking, the C,ondemnor 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 compensation due such Condemnee as estimated by the Condemnor. If the Condemnor fails to make such payment the court, upon petition of the Condemnee, may compel the Condemnor to file a declaration of estimate com~nsation 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. The compensation paid under subsections (a) and (b) of this section shall be without prejudice to the rights or' either the Condemnor or the Condemnee to proceed to a final determination of the just compensation and the payments heretofore 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. 26 P.S. § 1-407. (Emphasis added). 5 According to Section 407, the offer of estimated just compens~a~i'~n- thc Condemnor or the Condemnee wishes the Condcmnor to take possession of thc property. Thc l~mincnt Domain Code does not impose upon the Condemnor any right or obligation to make an offer or'just compensation prior to the filing ora Declaration of Taking. City Scraoton, 132 Pa. Cmwlth. 175,572 A.2d 250 (1990). In hot, the Eminent Domain Code is silent with respect to offers of"estimated just compensation" prior to the initiation Condemnation proceedings becanse there can be no such offer. In Re: Condemnation o~ 110 Washington Slreet, et al., 136 Montg. Co. L. R. 176 (1999). Thc issue in this case is the proprieW o[challenging estimated just compensation by way of preliminary objection prior to a demand by thc Condcmnor for possession. There is not a single case under the Pennsylvania Eminent Domain Code where preliminary objections to a Declaration or'Faking have been sustained because the Condcmnor's pre-Condemnation oiler to purchase the property has been made in bad faith, because such a scenario, is not legally recognizable or actionable. In Re: Condemnation of 110 Washington Street, ct al., 136 Montg. Co. L. R. 176 (1999)(citing cases). In prelimina~ objections similar to those filed by C~in in thc case sub judice, the Condemnee in I I0 Washinflton Street alleged bad faith in a pre- Declaration of Taking offer of estimated just compensation. The court held that Condemnces bad faith claim was not a proper prelimina~ objection to the Declaration of Taking, stating thc following: In the instant case, thc Condcmnee is asserting that no Condemnation has taken place because the Condemnor's pre-Condemnation offer was made in bad faith. However, since payment of estimated just compensation, and the determination of the propriety thcrcol; is a matter properly addressed only after either party requests Coodemnor 6 take possession of thc property pursuant to Section 407 of thc Eminent Domain Code, it cannot form thc basis of Preliminary Objections where proceedings arc initiated by the filing of a Declaration of Taking. The obvious reason is that if no Declaration ol' Taking has been properly filcd, for whatever reason, tile Condemnee has no right to estimated just compensation. There is not a single case tinder the Pennsylvania Eminent Domain Code where Prcliminap] Objection to a Declaration of Taking bare been sustained because thc Condcmnor's pre-Condemnation offer to purchase thc property has been made in bad faith, because such a scenario is not lcgalIy recognizable or actionable. Section 407 of the Code clearly sets forth a systematic and time-tested structure to be followed in this Commonwealth and an offer of estimated just compensation can only bc made post Condemnation. Id. at 212. (Emphasis in original). Chrin cites In re: Condemnation by City of Philadeh3hia of Leeshold of Airportels, Inc., 40 Pa. Cmwlth. 409, 398 A.2d 224 (1979), and Redevelol~ment Authority of the City of Erie v. Owners or Parties in Interest, I Pa. Cmwlth. 378,274 A.2d 244 (1971) as authority for the filing of prdiminary objections to an allegedly bad faith offer of estimated just cmnpcnsation. [lis reliance on Airportels and City of Erie is misplaced. In 110 Washington Street, tile Condenmee similarly cited to Airportels and City of Erie as authority for the filing of preliminary objections to an allegedly bad thith offer of estimated just compensation. Id. at 213. Judge Bertin, the author el' the 110 Washinp, ton Street opinion, distinguished Airportels and City o f Erie, stating tho following: [B]oth City of Erie and Airportels involved inverse Condemnation, where the Condemnee, upon asserting inverse Condemnation of its property, initiated proceedin~ts by filing a petition for the al3~ointment of a Jury of View and a petition requiring the Condemner to filca declaration of estimated iust compensation. The Condenmee then filed preliminary objections to the Condemner's declaration of estimated it]st conmcnsation asserting that tile estimate was made in bad faith. In both eases, thc court confirmed tile right o1' thc Condcmnee to file preliminary objections at that iuncture. Itl both cascs, thc Condemnee asserted that a Condemnation had taken place with a declaration of taking having been filed, and that it was entitled to payment of estimated just compensation. In our case, however, estimated just compensation, and the determination of thc propriety thereof, is a post-Condemnation matter, pursuant to Section 407 of the Eminent Domain Code. It cannot form the basis of preliminary objcctions where proceedings are initiated by thc filing of a declaration of taking. Therefore, by law and the conclusion of this court, thc Condemnor has not as yet made, and as long as these preliminary objections are outstanding cannot make, under Pennsylvania statutory law, an offer of estimated just compensation. At the appropriately statutorily dictated time, ia the future, the Condcmnor will make its considered offer of estimated just compensation. Itl. at 213. (Emphasis in original) ltl tile instant case, Chrin is challenging the sufficiency of compensation offered when possession is demanded. However, none of the prerequisites set forlh in Section 1-407 obligating PennDOT to file a declaration of estimated just compensation have occurred. PennDOT bas not filed such all estimate; it has only filed a Declaration o£Taking. Chrin alieges palpable bad faith of PcnnDOT in offering him a settlement of $135,600.00 for a portion of his property belbre PonnDOT filed its Declaration of Taking. Chrin is seeking a full disposition of this condemnation too early in tile proceedings. While preliminary objections may properly be used to challenge thc power and right of tim Condemnor to condemn, preliminary objections cannot be utilized to challenge tile sufficiency of the compensation offered prior to the delivery of possession. Chrin is essentially attempting to invalidate the entire taking on compensation grounds. 'File propriety of compensation is a matter properly addressed only after either party requests Condemnor take possession of the property pursuant to Section 407 of the Code and cannot form thc basis of Preliminary Objections where proceedings are initiated by the filing ora Declaration of Taking. t:or thc lk~rcgoing reasons, PcnnDOT has not yet made an ol'lkr of estimated just compensation, and there is no bad faith, as a ~nattcr of law, in PcnnDOT's prc-Condcmnatim~ Janoary 15, 1999 o fl'ct to purchase a portion o£Chrin's property. Lastly, Chrin also calls for the Declaration of Taking to be set aside bccausc thc taking will lead to inadequate post-condemnation access to bis remaining property. In thc present case, there is no question that PcnnDOT's condemnation will affect the current access to Cbrin's property and, as a result, Chrin will be entitled to damages to cure this resulting access problem. I lowcver, this is not an issue properly raised in a challenge to the condemnation by preliminary ohjcctions under Section 406. We believe this is a damage issue to be properly addressed at a later stage of thc proceedings, such as upon the filing of a petition for the appointment of viewers lo assess thc damages sustained as a resolt of the taking. BY TIlE COURT: WILLIAM F.~,IOILa~N, ~ J.~ IN RE: CONDEMNATION BY : THE COMMONWEALTH OF : PENNSYLVANIA, DEPARTMENT OF : TRANSPORTATION, OF RIGHT OF : WAY FOR S.R. 0581, SECTION 004, : RIW, IN THE TOWNSHIPS OF : HAMPDEN AND LOWER ALLEN : MICKEY C. SHULER, Condemnee COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION,: Condernnor : 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 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 AND NOW, this 12a~ 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 1. which relate to the Declaration of Taking filed by Condemnor, Commonwealth of Pennsylvania, Department of Transportation (herelna~er "Penn DOT" or "Condemnor') are denied in that the document in question, Condemnor's Declaration of Taking, speaks for itsel£ It is admitted that said document was filed on January 29, 2001. 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. I. Petition for Rule to Show Cause 6. Denied~ The averments of Paragraph 6. state a conclusion of law 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 behalfofCondemnor Penn DOT speak for themselves; no further pleading is required. 1I. Motion to Strike Improper Preliminary Obiections 9. Denied. The averments of Paragraph 9. constitute conclusions of law 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 of law. 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 It~ re: Condemnation by City c~£ Philadelphia r?fLeasehoMofAirporte& Inc., 40 Pa. Cmwlth. 409, 398 A. 2"4 224 (1979) held that: ",4 Declaration of Taking might be set aside on conclusi,,e proof that the condemnor acted in bad faith in making a required statement of the sum of money estimated to be just compensation." Id. at 419, 229, see also Schenck v. Pittsburb, h, 364 Pa. 31, 70 A. 2na 612 (i950); Wind, er v. Aires, 371 Pa. 242, 89 A. 2nd 521 (1952); Redevelopment ,~ttlhority qf The Ci.tv of Erie v. Owners or Parties In Interest, 1 Pa. Cmwlth. 378, 274 A. 2.'4 244 (1971) were it was held that: "If the power conferred on a municipality to take property by eminent domain may be inquired into and corrected by the courts where bad faith appears, 2 surely condemnor's conduct in feigned, not genuine, compliance with a statute designed to protect the condemnee, may also be inquired into and correctetL " Id at 228. Condemnor, Penn DOT's initial offer of its alleged Estimate of.lust 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 a&,ised that the Department has approved a revised pre-approval in the above-captioned claim in the amount of Thirty-Two Thousand Five- Hundred and Fifty ($32,550. 00) Dollars based upon the appraisal report of ~lliam Rothman. " A redacted copy of this letter is attached hereto as Condemnee's Exhibit Penn DOT's latest "Estimate o£Just Compensation" fails to reflect that Condemnee's tenant "Grinnell Fire Protection Systems Company, lnc." 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 o£ 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 o£the condemnation on its continued occupancy of its leased premises. IH. Motion in Limine 10. Denied. The averments of this paragraph constitute conclusions of law to which no responsive pleading is required. 11. Denied. Condemnee denies the averments of Paragraph I 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 12. constitute a legal conclusion to which no responsive pleading is required. Alternatively, to the extent that an Answer is required to the 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.[brty-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 A.KLEIN, P.C. ' ~A, Kleinl Esquire Attornery 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 4 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. SItULER TO PETITION FOR RULE TO SHOW CAUSE; MOTION TO STRIKE IMPROPER PRELIMINARY OBJECTIONS FILED TO THE DECLARATION OF TAKING; AND MOTION IN LIMINE are tree and correct to the best of my present knowledge, information, and belief. Date: RW446 (07/76) REMIS Prqj. No. County Federal Proj. No. Route - Sec. Claim No. Claimant Date: 12-18-00 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION 080063 Cumberland 0581-004 21001200000 Hampden Industrial Development Authority 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 heating 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. Attachment: RW475M Your Right of Way Representative is: Michael E. Foutz Telephone No.: 787-5035 Sincerely, David B. Rey~ol s~q~ District Right of Way Administrator Engineering District 8-0 EXHIBIT COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION ~---~'~--- www,dot.state.pa.us Office of Chief Counsel P. O. Box 8212 ltarrisburg, PA 17105-8212 Tel (717) 787-3128 Ftoc (717) 772-2741 cjcleme~dot state pa us Joseph A. Klein, P.C. 500 North 3ra Street, 7th Floor Harrisburg, PA 17101 Dear Joe: I October 2001 Re; Claimants: Claim No. In Re Condemnation by the Commnnwcalth 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 No. 01-587 Civil, Cumberland County Hampton Industrial Development Authority (legal owner) & Mickey C. Shuler (equitable owner) 210-120 Reference is made to your correspondence dated September 24, 2001. Please be advised that the Department has approved a revised pre-approval in the above captioned claim in thc amount of $32,550.00 based upon the appraisal report of William Rothman. EXHIBIT Thank you for your time and attention with regard to this matter. Very truly yours, OFFICE OF ~ . F COUNSEL By: t~cleFm Chris e, nts in-Charge Asst. Coun0tl cc: David B. Reynolds, R/W Admin., Dist. 8-0 Timothy F. Boles, P.E., Boles, Smyth Assoc., Inc. William Rothman, RSR Realtom CERTIFICATE OF SERVICE 1, 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 S}tOW CAUSE; MOTION TO STRIKE IMPROPER PRELIMINARY OBJECTIONS FILED TO TItE 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. Harrisburg, PA 17101 (717) 233-0132 Attorney for Owner/Condemnee Date: 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 : CIVIL ACTION -- LAW MICKEY C. SHULER, : Condcmnce : V. ; No. 01-587 CIVIL 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 INLIMINE AND NOW, this 16TM 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: '1 1. On January 29, 2001, the Department filed a declaration of tak'mg acquiring. 153 acres in fee simple title and.188 acres in temporary construction easement (access) area from the property of Mickey C. Shulcr (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 condenmee filed preliminary objections pursuant to Section 1-406 of the Eminent Domain Code, 26 P.S. §1-406. objections. On July 19, 2001, the Department filed an answer to condemnee's preliminary 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". 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 diseretion and bad faith. The condenmec 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 heating 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 theuse 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 3 the Eminent Domain Code and must be stricken as a matter of law. 26 P.S. §1-406(a); Township of Chester v. Department of Transportation, 339 A.2d 892 (Pa. Cmwlth., 1975); In the Matter of Proceeding by Cumberland-Dauphin-Harrisburg Transit Authority for the Condemnation of the Property of Alan F. St~urgin, (Cumberland County No. 97-1465, Civil Term, filed October 21, 1998, as per Bayley, J.), at 4-5; In Re: Condemnation of 110 Washington Street, et al, 136 Montg. Co. L.R. 176, 212 (1999); In Re: Condemnation by the Commonwealth of Pennsylvania, Degashnent of Transportation, of Ri e, ht of Way for State Route 33, Section 002, a Limited Access Hie_,hway 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. IlL Motion In Limlne 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 remaining land or otherwise made reference the payment of money or just compensation as a result of the within declaration of taking, all of which refer to matters of just compensation which are beyond the scope of permissible preliminary objections to a declaration of taking. 4 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. 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, OFFICE OF CHIEF COUNSI~L C~t'ffisto~aer/J .~ Clements Asst. Co~ei in-Charge Attorney for the Condemnor IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONVqEALTH OF PENNSYLVANIA 1N RE: CONDEMNATION BY THE : COMMONWEALTH OF PENNSYLVANIA, : DEPARTMENT OF TRANSPORTATION : OF RIGHT OF WAY FOR S.R. 0581, SECTION 004 IL/W, IN THE BOROUGH OF CAMP HILL AND THE TOWNSHIPS OF HAMPDEN AND LOWER ALLEN : CIVIL ACTION -- LAW MICKEY C. SHULER, Plaintiff V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Defendant No. 01-587 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 3~d Street, 7th Floor Harrisburg, PA 17101 Respectfully submitted, sst Co ns By: ~s~in~;Vh~ Attorney for the Defendant Dated: 16 October 2001 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 MICKEY C. SHULER, Condemnee V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW Condenmor : 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 Preliminary Objections Filed to the Declaration of Taking; and Motion in Limine, it is ordered that: 1. A Rule is issued upon Condemnee to show cause why Condemnor is not entitled to the relief requested; 2. Condenmee shall file an answer to the motion 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 completed within 49 days of the date of this order; 5. Argument shall be held on Monday, February 11, 2002, at 1:30 p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. 6. Briefs shall be submitted 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 BY THE COURT, (/ ,,o :rc MICKEY C. SHULER, Condemnee V. ; COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Condemnor IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 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 Briefing, Argument 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. Mark S. Silver, Esq. 500 North Third Street 7th Floor P.O. Box 1152 Harrisburg, PA 17101 Attorney for Condemnee BY THE COURT, jJ. es~ley~Ol~er..~. ~ j~' Christopher J. Clements, Esq. Assistant Counsel Office of Chief Counsel Department of Transportation P.O. l~ox 8212 Harrisburg, PA 17105-8212 Attorney for Condemnor :rc IN RE: CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, OF RIGHT OF WAY FOR S.1L 0581, SECTION 004, R/W, IN THE TOWNSHIPS OF HAMPDEN AND LOWER ALLEN M1CKEY C. SHULER, VD COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, COtlt/e~tttor IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 01-557 CIVIL TERM CIVIL ACTION - LAW 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: (1) The Continuance is granted and the matter is rescheduled for Argument Court to be held at least sixty (60) days subsequent to February I 1, 2002, or on · 2002, at .m,, in Courtroom No. 1, Cmnberland 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: CC: 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 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 IN RE: CONDEMNATION BY : THE COMMOb0OVEALTH 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 : MICKEY C. SHULER, Condernnee Vo COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION,: Condemnor : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 01-587 CIVIL TERM CIVIL ACTION - LAW EMINENT DOMAIN PROCEEDINGS MOTION FOR CONTINUANCE OF BRIEFING, ARGUMENT COURT, AND DISCOVERY SCHEDULE PURSUANT TO PA. R.C.P. 216 AND NOW, this 7.-').-~-~d 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". 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. 2 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 ofHartman & Associates, Inc., Camp Hill Borough engineers. Sheet 1 of 2 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 of the 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 further interests in real estate from Condenmee 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 condenmation" 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 "A") 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 4 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 of facts 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 fm-ther 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 11, 2002, currently scheduled Argument Court date, briefing and discovery schedules. Date: Respectfully Submitted: JOSEP[HfiA. KL~IN, P.C. Mark S. Silver, Esquire Attorney I.D. No. 09825 500 North Third Street, 7* Floor P.O. Box 1152 Harrisburg, PA 17101 (717) 233-0132 Attorneys for Mickey C. Shuler, Condemnee/Owner EXHIBIT ®® 0 01 01 0 VERIFICATION I, Mark S. Silver, Esquire, hereby affirm, subject to the penalties of 18 Pa. C.S. §4904 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. Mark S. Silver Date: Z.K ~4~ -~,x.. 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 MICKEY C. SHULER, : Condemnee : COMMONWEALTH OF : PENNSYLVANIA, : DEPARTMENT OF TRANSPORTATION, Col~,demllot' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 01-587 CIVIL TERM CIVIL ACTION - LAW EMINENT DOMAIN PROCEEDINGS CERTIFICATE OF SERVICE I, 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 tree 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 Date: J~, P.C. Mark S. Silver, Esquire Attorney I.D. No. 09825 500 North Third Street, 7a~ Floor P.O. Box 1152 Harrisburg, PA 17101 (717) 233-0132 Attorneys for Mickey C. Shuler, Condemnee/Owner COMMONWEAL TH OF PENNSYLVANIA DEPARTMENT OF TRANSPOR TA TION 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 1N 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, V. Conderanee No. 01-587 CIVIL COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, EMINENT DOMAIN PROCEEDINGS--IN REM Condemnor 2 ANSWER TO RULE TO SHOW CAUSE REGARDING CONTINUANCE AND NOW, this 5th day of February, 2002, the Commonwealth of Pennsylvania, Department of Transportation, condenmor (Department), by its attorney, Christopher J. Clements, Assistant Counsel in-Charge, Right of Way Section, respectfully represents as follows: 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 Harrisburg Expressway in Camp Hill Borough between 19~ Street and 31st 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 of this 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 Cottrt 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. 2 4. The Depa~hnent'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, 13 and 14 ofShuler's preliminaryobjections are improper as amatter of law. 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, condenmor, 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, BY:CAsstSt~~~ 0 Attorney for the Condemnor 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, 1N THE BOROUGH OF CAMP HILL AND THE TOWNSHIPS OF HAMPDEN AND LOWER ALLEN CIVIL ACTION -- LAW MICKEY C. SHULER, Plaintiff V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Defendant No. 01-587 EMINENT DOMAIN PROCEEDINGS -o 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 3~d Street, 7th Floor Harrisburg, PA 17101 Respectfully subm~ed, Asst. Cot~el in-Chargeff Attorney for the Defendant Dated: 5 February 2002 MICKEY C. SHULER, Condemnee COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Condemnor IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 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 Condenmor's Answer to Rule To Show Cause Regarding Continuance, the motion is denied. Mark S. Silver, Esq. 500 North Third Street 7th Floor P.O. Box 1152 Harrisburg, PA 17101 Attorney for Condemnee Christopher J, Clements, Esq. Assistant Counsel Office of Chief Counsel Department of Transportation P.O. Box 8212 Harrisburg, PA 17105-8212 Attorney for Condemnor BY THE COURT, ~dj/Wesley Olei~., C) MICKEY C. SHULER, Condemnee COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Condemnor IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-587 CIVIL TERM ORDER OF COURT AND NOW, this 8th day of February, 2002, upon consideration of the attached letter from Mark S. Silver, Esq., attorney for Condemnee, the hearing previously scheduled for February 1 l, 2002, is cancelled. BY THE COURT, Mark S. Silver, Esq. 500 North Third Street 7th Floor P.O. Box 1152 Harrisburg, PA 17101 Attorney for Condemnee Christopher J. Clements, Esq. Assistant Counsel Office of Chief Counsel Department of Transportation P.O. Box 8212 Harrisburg, PA 17105-8212 Attorney for Condenmor Wesley O~, Jr., ~' J. Fill 11:06 FAX 717 233 2518 Post OF~Ic~ Box VIA ]~ACSIMILE (717) 240-6462 AND F!R~T CL4~$ U,S, MAtt. Department df Transporttaio~n of Rigitt df Flay for and Lower Allen MicRey C; ~'ltule~, C'ondernne-e v. Commonwe~lt& of Penrtsylv~mia, Department of Trtm~ponadon, Condemno~ No. 01-$~7 Civil Term (Cumberland County) D~ar Judge Oler: This wiLl cou~m that ou February 7, 2002, a Settleanvat St/pulaxioa was e~tered i~to by and bctwom our ~li~ut, Mi~k~y C. SI.ulca', Cca~maor~ and tho Commonwca~th o£Pcnnay/vaai~ Dcpartmeat of Traasportatic~ Coudcmaor, which Settlement Stipulation serves to conclude those matters wluch wouJd have otherwise been argm~d bcf0r~: yOu on Monday, February 11, 2002, MSS/ap Enolo~ure~ Cu_ Clui~wghcr J'. Cl~nonts, ,Esqu/r~ (Via F~cs/milc IN RE: CONDEMNATION BY : THE COMMON3,VEALTH 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 : : MICKEY C. SHULER, Conderrmee COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION,: Condemnor : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 01-587 CIVIL TERM CIVIL ACTION - LAW 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: Date: ~.-'7. [. - 0~' JOSEPH ~.KLEIN, P.C. · 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