HomeMy WebLinkAbout95-00436
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CERTI FICATE AND 'rRANSM I'rTM. OF IIECORD
UNDER
PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 lc)
To the Prothonotary of the Appellate Court to which the
within matter has' been appealed:
CC.MMONWEALTH COURT OF PENNSYLVANIA
TilE UNDEIlSIGNED, Prothonotary of the Court of Common Pleas
of CUMBERLAND County, the said court being a court of record,
do hereby certify that annexed hereto is a true and correct copy
of the whole and entire record, including an opinion of the court
as required by PA R,A,P, 1925, the original papers and exhibits,
if any on file, the transcript of the proceedings, if any, and the
docket entries in the following matter:
Case No. 95-436 Civil Term; No. 2395 C. D. 1995
In Re:
Condemnation Proceeding by Borough of Carlisle
for the Condemnation of Property of
William M. Ewing and Seymour A. Ewing
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The documents comprising t.he record have bee~ ~mb~ed
from No, 1 to No. 62 and at tached hereto as E~ig~t ~is a
list of the documents correspondingly numbered and iden~i'U1i with
reasonable definiteness, including with respect to eilch'1loc~nt,
the number of pages comprising the document,
The date on which the record has been transmitted to the
appellate cou~t is November 20. 1995
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(Seal of Court)
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Prothonotary
An additional copy of this certificate is
sign and date copy, thereby acknowledging receipt
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RECORD RECEIVED:
Date:
enclosed. Please
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CERT I FIChTE hND 'l'RhNSM I'I'Thl. OF RECORD
UNDER
PENNSYLVhNIh RULE OF hPPELLhTE PROCEDURE 19]1 lcl
To the Prothonotary of the hppellate Court to which the
within matter has been appealed:
COMMONWEhLTII COURT OF PENNSYLVhNIh
THE UNDERSIGNED, Prothonotary of the Court of Common Pleas
of CUMBERLhND County, the said court being a court of record.
do hereby certify that annexed hereto is a true and correct copy
of the whole and entire record. including an opinion of the court
as required by Ph R,h.P, 1925. the original papers and exhibits,
if any on file, the transcript of the proceedings, if any. and the
docket entries in the following matter:
Case No. 95-4]6 civil Term; No. 2]95 c. D, 1995
In Re: Condemnation Proceeding by Borough of Carlisle
for the Condemnation of Property of
William M. Ewing and Seymour h. Ewing
The documents comprising the record have been numbered
from No, 1 'to No, 62 . and attached hereto as Exhibit h is a
list of the documents correspondingly numbered and identified with
reasonable definiteness. including with respect to each documen~,
the number of pages comprising the document.
The dato on which the record has been transmitted to the
appellate court is November 20. 1995
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(Se<:ll of Court)
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Prothonotary
hn additional copy of this certificate is enclosed. Please
sign and date copy, thereby acknowledging receipt of this record.
RECORD RECEIVED:
Date:
(signature & title)
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CEIITII'IC/\TE /\NI) TIl/\NSMI1"'/\I. O~' IIECOIm
UNDEIl
PENNSYLV/\NI/\ IlULE OP /\PPELL/\TE PIlOCEDURE 1931 (c)
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To the Prothonotary of the /\ppellate Court to which the
within matter hos been appealed:
COMMONWE/\LTII COUIlT OP PENNSYLV/\NI/\
TilE UNDEIISIGNED, Prothonotary of the Court of Common Pleas
of CUMBERL/\ND County. the said court being a court of record,
do hereby certify that annexed hereto is a true and correct copy
of the whole and entire record. including an opinion of the court
as required by 1'/\ 11./\,1', 1925, the original papers and exhibits,
if any on file, the transcript of the proceedings. if any, and the
docket entries in the following matter:
Case No. 95-436 Civil Term; No. 2395 C. D. 1995
In lie: Condemnation Proceeding by Borough of CarliMle
for the Condemnation of Property of
William M. Ewing and Seymour /\. Ewing
The documents comprIsIng the record have been numbered
from No. 1 to No. 62 . and attached hereto as Exhibi t ^ is a
list of the documents correspondingly numbered and identified with
reasonable definiteness, including with respect to each document.
the number of pages comprising the document,
The date on which the record has been transmitted to the
appellate court is November 20. 1995
,
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(Seal of Court)
Prothonotary
/\n additional copy of this certificate is enclosed. Please
sign and date copy. thereby acknowledging receipt of this record.
RECOIlD RECEIVED:
Date:
(signature & title)
PIIGE rD.
1 - 6
7 - 9
10 - 15
16 - 21
22 - 26
27
28 - 33
34 - 36
37 - 38
39 - 43
44 - 46
47 - 62
Among the Records nnd I'rllccedings enrolled in the courl of Common Plens in nnd for the
county of Cumberland
No, 2395 C,D, 1995
to No. 95-436 Civil Term
in the Commonwenllh of Pennsylvnnin
Term. 19 is contained the following:
COPY OF
Appearance
DOCKET ENTRY
In Re: Condemnation Proceeding by Borough of Carlisle
for the Condemnation of Property of '
William M. Ewing and Seymour A. Ewing
Jan. 27, 1995, Declaration of Taking, filed.
Feb. 13, 1995, Certificate of Service, filed,
Feb. 27. 1995. prellininary Objections Pursuant to the Eminent. Domain Code,
26 P.S. S1-406, filed.
March 3, 1995, Amended Prellininary Objections Pursuant to the Eminent Domain
Code, 26 P,S, Sl-406, filed.
March 23. 1995. Reply to Condemnees' Amended Preliminary Objections, filed,
March 30. 1995. Praecipe for Listing Case for Argument, filed.
Aug. 24. 1995. Opinion and Order of Court, filed, In Re: Condemnees'
Amended Prellininary Objections
AND NOW, this 22nd day of August, 1995, upon careful consideration, the
condemnees' exception to the Declaration of Taking filed by the Borough of
Carlisle is SUSTAINED. We hereby order that the title of the portion of
land in question be revested to the condemnees.
By the Court, Harold E, Sheely, P.J,
Sept. 20. 1995. Notice of Appeal, filed.
Notice is hereby given that the Borough of Carlisle. Condemnor above
named, hereby appeals to the Carrnonwealth Court of pennsylvania fran the
order filed in this matter on the 24th day of August, 1995. This order has
been entered in the docket as evidenced by the attached copy of the docket
entry,
By: David A. Fitzsimons, Esq,
Sept. 22. 1995. Amended Certificate of Service, filed,
Sept. 29. 1995. Notice of Docketing Appeal fran CarrnonweaJ.th Court of
pennsylvania: No, 2395 C,D, 1995 assigned.
Sept. 29, 1995, Statement of Matter Complained of on Appeal, filed,
Briefs
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COInmunwcilllh of IJcnnsylvaniil
CuunlY of Cumherlaud
} ss:
No. 2395 C.D. 1995
I. Lawrence E, Welker . "rothunolary
uf the Cuurl of Cummon Pleas in lmd for said
CuunlY. do hereby cerlify thaI Ihe furegoing is u
full. true und currCCI copy oflhe whule recurd oflhe
case Iherein slaled, wherein
In Re: Condemnation proceedina bY
Borollah of Carlisle for the
Condemniltinn of Prooerty of
W;11;;tm M r.ot.r;n'J 9nn C::eymollT" f>
Ewing
Defendunt _, as thi: sume remuins of record
before Ihe said Courl ut No. 95-436 of
Civil Term. A.D. 19_.
have hercunlo sel my hand and affixed Ihe seal of said Courl
day of vemoor A. D. 19-25..
In TESTIMONY W/lEREOF. I
Ihis Tl.entieth
Ilrnlhunnlary
I. Harold E, Sheely Presidenl Judge of the Ni nth
Judicial District. composed of the Counly of Cumberland, do certify Ihal LnwrF'nCP F.. Wf'l kf'r.
Prothonotary , by whom the allnexed record, eertilieate and
alleslalion were made and given, and who. in his own proper handwriting,lhereunto subscribed his name
and aftixed the seal oflhe Court ofCummon Pleas of said County. was,allhelimeofsodoing, and now is
I'rothonotary in and for said Counly of ClImhPrl,mrl in
Ihe Commonwealth of I'ennsylvania, duly commissioned and qualilied to all of whose actsassuch full faith
and credit arc and nllghtto be given as well in Courts of judicature as elsewhere, and that the said record,
cerlilieate and alleslation arc in due form of law and III e 6y Ihe pr~pe!,.oftieer. , / , '
CLAr- (- I'Ll L-.t( ----
Commonwealth uf I'ennsylvania
County of Cumberland
} ss:
I, Lawren'"e E, ~Ielker , I'rolhonolary of the Courl of Common Pleas in
und fur Ihe said Cuunly. du certify Ilwlthe Ilonorable Hrtrnlrl F:. Shpply
by whomlhe foregoing ullesluliun wus mude. and who has thereunto subscribed his name, was. utlhe lime
uf making thereof, and slill is President .IudgeoflheCourl ofCummon Pleas. Orphan' Courl and Courl of
Quarler Sessions uf the I'euce in und for said Counly. duly Commi"ioned and qualilied; 10 all whose aels
us such full fuith und eredil ure und uughl 10 he given. lIS well in Courts of judiculure us elsewhere.
IN TESTIMONY W/lEREOF. I huve hereunlo
sel my und uffixed the seul uf suid Cuurlthis
.0 d 'y uf Novef11m ~ 19::;tjL.
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11111lhllllnlilfY
PYS510
1995-00436
Cumberland County Prothonotary's
, Civil Case Inquiry
DECLARATION OF TAKING
Office Page 1
Filed.........
1/27/95
8:09
CD 1995
0/00/00
0/00/00
superior Co2395
Execution Date
Sat/Dis/Gntd. .
Jury TriaL...
.....*............*........................******..**..*****...*.*.*..*.........
General Index Attorney Info
CARLISLE BOROUGH OF CONDEMNOR FITZSIMONS DAVID A
EWING WILLIAM M CONDEMNEE FREY ROBERT G
'EWING SEYMOUR A CONDEMNEE FREY ROBERT G
.*...*.....*......*.............................................................
. Date Entries ·
.....*..*..*..*...*.............................................................
Judge Assigned:
Judgment:
SHEELY HAROLD E PJ
.00
01127/95
02/13/95
02127195
03/03/95
03/23/95
03130195
08/24/95
DECLARATION OF TAKING - BOROUGH OF CARLISLE
CERTIFICATE OF SERVICE
PRELIMINARY OBJECTIONS PURSUANT TO THE EMINENT DOMAIN CODE 26 PS
1-406
AMENDED PRELIMINARY OBJECTIONS PURSUANT TO THE EMINENT DOMAIN CODE
26 PS 1-406
REPLY TO CONDEMNEES' AMENDED PRELIMINARY OBJECTIONS
PRAECIPE FOR LISTING CASE FOR ARGUMENT BY DAVID A FITZSIMONS ESQ
OPINION AND ORDER OF COURT - IN RE CONDEMNEES' AMENDED PRELIMINARY
OBJECTIONS - SUSTAINED - BY HAROLD E SHEELY PJ - COPIES MAILED
8/24/95
09/20/95 NOTICE OF APPEAL TO COMMONWEALTH COURT BY DAVID A FITZSIMONS ESQ
09/22/95 AMENDED CERTIFICATE OF SERVICE
091129/95 COMMONWEALTH COURT OF PENNSYLVANIA OFFICIAL DOCKET # 2395 CD 1995
09 29/95 STATEMENT OF MATTER COMPLAINED OF ON APPEAL
*******************************************************************************.
. Escrow Information ·
. Fees & Debits Bea Bal Pvmts/Ad1 End Bal ·
.....*.....*......*.............,........~......~...........*................*..
DECLAR/TAKING
TAX ON DECLAR
SETTLEMENT
JCP FEE
APPEAL
35.00
.50
5.00
5.00
30.00
35.00
.50
5.00
5.00
30.00
.00
.00
.00
.00
.00
75.50 75.50 .00
.....*..*..*......*.............................................................
. End of Case Information ·
.*..**.....*..*..**.............................................................
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CERTIFICATE OF SERVICE
I, DAVID A, FITZSIMONS, ESQUIRE, hereby certify that on the 22nd
day of SEPTEMBER, 1995, I served a copy of the foregoing document VIA HAND
DELIVERY upon the person(s) and in the manner indicated below, which service
satisfies the requirements of the Pennsylvania Rules of Civil Procedure:
Robert G, Frey, Esquire
FREY & TILEY
5 South Hanover Street
Carlisle, PA 17013
METrE, EVANS & WOODSIDE
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BY:
":\':~S:.~~) -::"
DAVID A. -FITZSIMONS, ESQUIRE
Supreme Court I,D, #41722
3401 North Front Street
P,O, Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
Attorneys for Condemnor
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IN RE: Condemnation Pr()ceedln~ by
BOI'ough of Carlisle for the
Condemnation of Properly of
William M. Ewing and
Seymour A. Ewing
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY. PENNSYLVANIA
: NO, 95-436 Civil Tenn
,
,
: Eminent Domain
BRIEF OF CONDEMNEES
AND NOW, come Frey & Tiley, Attorneys for William M. Ewing and Seymour A.
Ewing, the Property Owners and Condemnees herein, and respectfully submit the following in
support of their motion:
FACTUAL BACKGROUND
William M. Ewing and Seymour A, Ewing ("Ewings") arc the owners of a cemetery
located in the Borough of Carlisle, Cumberland County, Pennsylvania, by virtue of a deed from
Virginia M, Penrose and Ellen W. Penrose, recorded January 31, 1952 in Cumberland County
Deed Book "V", Volume 14, Page 390, The deed was conveyed under and subject to an Indenture
of Trust recorded March II, 1867, which Indenture fomlally created a cemetery and laid out burial
lots for a cemetery. This cemetery is known as and has been known since thai time as Ashland
Cemetery and has been operated continuously as a cemetery from hefore thai time to the present,
In connection with their ownership of Ashland Cemetery, Ewings were approached by
representatives of Giant Food and later by representatives of the Borough of Carlisle concerning
the conveyance of a portion of the cemetery land along the York Road for the purpose of opcning
a new intersection and a new street. The street is to lead from the York Road, across land intended
to be purchased by Giant, and terminating at the intersection with South Spring Garden Street, a
public street located in lhe Borough of Carlisle, The Ewings and Giant and, thereafter, the Ewings
and the Borough were unable to arrive at mutually agreeable terms for the conveyance of the
desired land,
Thereafter, the Borough tiled its Declaration ofTaking.
PROCEDURAL BACKGROUND
The Borough filed u Declarutionof Tukingon Junuury 27, 1995 to No. 95-436 Civil Term.
The notice to the Condemnees, pursuuntto 26 P.S. * 1-405, wus served upon the Condemnees on
FebnlUry 2, 1995, The Condemnees filed Preliminury Objections pursuant to 26 P.S, * 1-406 and
filed amended Preliminary Objections on March 3, 1995 and served u certified copy lhereof on the
same date, The Preliminary Objections raised the issue of the lack of power of the Borough to
condemn lhe land of the Condemnees and, in addition, raised a question regarding lhe sufficiency
of the form of the Declarution ofTuking. The Preliminary Objections soughlthe revesting of the
condemned cemetery lund in lhe Ewings and, in the alternative, the filing by the Borough of u
more specific Declaration of Taking.
ISSUES PRESENTED AND SUGGESTED ANSWERS
I. Whether the Borough lacks the power to condemn a portion of the cemetery for reason
of the prohibition contuined in 9 P.S, * 8.
Suggested Answer: The Borough is prohibited.
2, Whether Preliminary Objections raise questions of fact which may need to be resolved
before a determination on the issues raised may be made,
Suggested Answer: A hearing on factual issues should be held if queslions of fuct exist.
3, Whether the Notice ofTuking fails to conform with the Eminent Domain Code, 26 P.S,
* 1-402(b)(5) and should be umended.
Suggested Answer: The Borough should be ordered to file a more specific Declaration of
Tuking so that it complies with the requirements of the Eminent Domain Code
ARGUMENT
1. Whether the Borough lucks the power to condemn u portion of the
cemetery for reuson of the prohibition contulned In 9 P.S. * 8.
Suggested Answer: The Borough Is prohibited.
While it is true thatlhe power of eminent domuin is u power of the Commonwealth of
Pennsylvania wbich is derived from the common law und 1I0t from statute, the power muy be
exercised only through stututorily nuthorized mcans und agencies, Interstate Cemetery Company
Appeul, 422 Pu, 594, 222 A.2d 906 (1966). The Borough relics on the MlInieipalilies Planning
Code, 53 P.S, * 46501, t!1.ft!q.,as its ennbling stntute.
While a borough is empowered to tIIke land by eminent domain, thut power is subject to
stututory limitations, exemptions, und procedurul requirements for its execution. In this instunce,
the limitation and prohibition is containcd in thc Act of April 5, 1849, P.L, 397 * I, 9 P.S. *8 as
follows:
It shall not be luwfulto open any strcct, lune, alley or public road through uny
burial ground or cemetery wilhin this commonweulth, any laws heretofore passed
to the eontfllry notwithstanding: Providcd, That this section shall not extend to the
city and counly of Philadelphia.
As the Supreme Court hus explained, the legislature recognized the importunce of protecting
cemeteries from intrusion,
By the Act of 1849, supru, the legisluture clearly und unequivocullyexempted
cemeteries und buriul grounds in this Commonweallh (with lhe exception of
Philude1phiu) from "luking", through eminent domain, for roud nnd highway
construclion,
A close study of lhe Act of 1849, suprn, clearly indicates thai this enactment looked
not 10 the condemnor, but ralher to the land to be condemned, und manifested a
strong policy in this Commonweulth agninstuny disturbances of cemeteries or burial
grounds for road construction. It specificully exempted and immunized such lands
from condemnation for slIeh purposes. .., All such lunds were protectcd from the
exercise of the power, regurdless of the condemning body involved. Moreover, this
policy hus not been changed one iotu by the legislature since it was first promulguted
116 years ago. n2
. . . . . . . . . . . . . . . . . .Footnote. . . . . . . . . . . . . . . . . .
n2 In recent years, in legislation governing the opening of roads by townships of
the first and second class, the legislature has evidenced un intenlion of continuing this
policy. See, Acts of Muy 27, 1949, P. L. 1955, @ 43, 53 P.S, @ 57006, und June
I, 1956, P. L. (1955) 2021, @ 13,53 P.S, 66101.
. . . . . . . . . . . . . . . . . .End Footnote. . . . . . . . . . . . . . . . . .
Further, the right of eminent domnin is exclusively in the sovereign. While the
right to exercise the power mny be delegnted, the body to which the power is
entrusted hus no uuthority beyond lhnt legislntively granted. See, 13 P.L,E"
"Eminent Domain, " @ 4 und uuthorities cited therein,
It is without qllestion thul the Innd sought to be tnken is cemetery land. Although the Plan
of the property condemned (Exhibit "B") of the Declaflltion of Taking, does not explicitly
designale the land as a cemetery, it do~s reference the land :IS being described in Deed Book "V",
Volume 14, Page 390, in the pablic records of the Recorder of Deeds of Cumberland County.
That deed in turn states that the conveyance is made under and subjeclto the Indenture of Trust,
also recorded in the public records as aforesaid which further includes the plan of Ashland
Cemetery, showing the entire tract to be laid out for II cemetery, Whether bodies arc actually
interred on the strip of ground to be taken, a question of facl which could only be resolved through
an evidentiary hearing, is irrclevant, Where the plan~ "clearly earmllrk the lllnds involved as
present cemetery land," the land is protected by the statute, whether bodies arc presently interred
there or not, Interstate, 422 PII, at 599, 222 A.2d al
It is further c1ellr that the tllking of lhe cemetery land by the Borough is for the opening of II
screet, The Borough admits in paragraph 4 of its Declaration of Tllking that the cemetery land
sought to be condemned is "required IIdditionalrighl-of-way along York Road (S.R, 0074) in
connection with an approved streel intersecting with said York Road." The "approved street"
docs not presently exist and would be opened in the future in connection with this condemnation,
Since the laking of cemetery land is for the purpose of lIequiring additionlll right of WilY necessary
for lhe opening of II new rolld, the taking is expressly prohibited by 9 P.S, * 8,
". Whether Preliminary Objections raise questions of fact which may
need to be resolved before a determination on the Issues raised
may be made.
Suggested Answer: A hearing on fnctuallssues should be held if
questions of fact exist.
The procedure for preliminary objections to an eminent domain lIIking provides for fact
finding to resolve issues of filet if deemed necessary by the Court. In re!evllnt part, 26 P.S, * 1-
406(e) states, "If an issue of fllct is raised, the court shall take evidence by depositions or
otherwise,"
It is suggested lhat based on the rellsoning outlined above, no evidentillry hellring is
required for the Court to enter an Order agllinstthe Borough, finding the taking to be without
authority,lInd ordering that title be revested in the Condemnees, To make such II ruling, the Court
mllY rely on matters of public record indiellting the existence IInd location of Ashlllnd Cemetery IInd
the admission in the Borough's Notice of Taking that the tllking of the cemetery IlInd is for the
opening of II street. Bused on these two facts, the Court may then conclude thlltthe Borough lacks
authority to take the cemetery land for reuson of lhe prohibition contained in 9 P.S. * 8 and
lhereby uphold the lime-honored policy of the Commonwealth as expounded in Interstate.
To find againsllhe Condemnees, however, the COllrt must conclllde either lhatthe land
owned by the Condemnees is not a cemetery or thut the Borollgh is not opening a street, Either of
these findings necessarily involve a finding of fuct which cannot be mude without the taking of
evidence. Therefore, before resolving the issues in lhis muller, the Court must hold an evidentiury
hearing. Otherwise, a property owner is providcd no legal rccourse. See, Appeul of Con\\-ay, 60
Pa. Commonweulth Ct. 520, 523, 432 A.2d 276, 278 (1981): "[I]f, as here, no testimony is
allowed, a condemnee, whose exclusive meuns of challenging lhe power to condemn is by filing
preliminury objections to the declaration of tuking, has no opportunity to show that the action of
the condemnor was urbitrary."
3. Whether the Declaration of Taking falls to conform with the
Eminent Domain Code, 26 P.S. ~ 1.402(b)(5) and should be
amended.
Suggested Answer: The Borough should be ordered to file a more
specific Declaration of Taking so that It complies with the
requirements of the Eminent Domain Code.
The Eminent Domain Code requires thut a condemning government body set forth certain
specific infonnation in its Declaration of Taking. Among the informalion to be provided in the
Declaration of Taking is a statement of the city, township or borough in which the taken property
is located.
It is not suggested that the Condemnees are without knowledge of the location of the
property or in which municipality the property is locuted. Nor is it suggested that the failure to
slate the municipality is a fatal defect necessitating the revesting of title in the Condemnees as a
matter of law, It is suggested, however, lhatthe provisions of the Eminent Domuin are mandalory
rather thun merely advisory. And il is fllrther suggested that it is within the power and discretion of
the Court to grunt leave for the !iling of an amended Declaration of l'dking to the same term and
number without instituting new court uction, In re Powell, 14 D, & C,3d 38 (1980), After ll.:
!iling, an amendcd Notice of Taking would be served and leave should grunted for any further
preliminary objections and fllrther proceedings held on the within Objections. Should the
Borough fail to file an amended Notice of 111king within the time frume granted, then an Order
should be grunted vesting title in the Condemnees.
1b hold otherwise would ignore the express stutlltory requirements.
CONCLUSION
The Borough lacks the power to take by eminent domuin the property of the Condemnees,
A borough muy not open a street through a cemetery. The taking of land is a portion of Ashland
Cemetery, a cemetery in continuous use for well over 100 years, The stated purpose for the taking
is to open an intersection for a new street. As such, the Borough is clearly opening lhe new street
through the cemetery, For this reason, un Order should be entered revesling title in the
Condemnees, If in reviewing this maller, the Court determines issues of fact have been raised, the
appropriate means to resolve the isslles is through evidentiary hearings.
Finally, the Declaration of Taking fails to state the municipality in which the property is
located. The Court should grant leave to lhe Borough to file an amended declaration of taking and
if no such declaration is filed within the time frame ordered, to enler an order revesling title in the
Condemnees,
Respectfully submilled,
Frey & Tiley,
Allomeys for William M. Ewing and
Seymour A. Ewing, property owners and
Condemnees
By:
{'''--~ oC ~ -<J.
Robert G, Frey, Esquire
Supreme Court Number 46397
5 South Hanover Street
Carlisle, Pennsylvania 17013
(717) 243.5838
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IN RE: Condemnation Proceeding by
Borough of Carlisle for the
Condemnation of Property ot
William M, Ewing and
Seymour A. Ewing
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 95-436 Civil Term
AND NOW comes the Condemnor, The Borough of Carlisle ("Borough") by its
attorneys, Mette, Evans & Woodside, and respectfully submits the following in
opposition to Condemnees' Preliminary Objections.
], fACTUAL RACKGRO'L"NI)
The facts relevant to disposition of the Condemnees' Preliminary Objections are
all ot record and relate as follows:
The Borough of Carlisle, duly authorized under the Municipalities Planning Code
53 P.S, 946501 .et~ filed a Declaration ofTaklng on January 27,1995 and the Notice
.
was served upon the Condemnees on February 2, 1995, The Declaration serves to
take a small portion of land owned by William M. and Seymour A. Ewing ("Ewings") who
operate the property known as Ashland Cemetery, The total area of land taken Is
1,818,737 sq. ft. (0.04175 acres) in the shape of a narrow triangle running along the
existing right.ot.way ot York Road (SR 0074). This taking is limited to only that property
~
.
necessary to widen the right-of-way of the aforesaid York Road. (Please refer to Exhibit
"B" of Declaration of Taking.)
n. PROCEDURAL BACKGROUND
Subsequent to Condemnees' timely filing of Preliminary Objections pursuant to
26 P,S, ~1-406 and Amended Preliminary Objections filed on March 3, 1995, the
Borough responded to Condemnees' objections and listed the matter for argument.
This Brief Is offered in opposition to the Condemnees' Preliminary Objections and Brief
in Support Thereof,
III. lSSUES PRESENTED
A. WHETHER THE BOROUGH MAY CONDEMN A PORTION OF CONDEMNEES
PROPERTY TO WIDEN AN EXISTING ROAD.
Suggested answer in the affirmative,
B. WHETHER THE COURT MAY DISPOSE OF THE CONDEMNEES'
PRELIMINARY OBJECTIONS WITHOUT RESORT TO EVIDENTIARY
HEARINGS.
Suggested answer in the affirmative.
C. WHETHER THE NOTICE OF TAKING CONFORMS WITH THE
REQUIREMENTS OF THE EMINENT DOMAIN CODE IN SUFFICIENTLY
IDENTIFYING THE PROPERTY SUBJECT TO CONDEMNATION.
Suggested answer in the affirmative.
-2-
.
IV, ARGUM~m
A. The Borough has the authority to condemn property and its exercise of that
authority in this matter is appropriate,
The Condemnees concede that the Borough may properly exercise its power of
eminent domain in appropriate circumstances, They allege, however, that the
Borough's taking of a narrow sliver of property at the Ashland Cemetery site to widen
the existing right-of-way for York Road is prohibited under the Act of April 5, 1849, P,L.
397 ~1, 9 P,S. ~8 which reads as follows:
It shall not be lawful to open any street, lane, alley or public
road through any burial ground or cemetery within this
Commonwealth, any laws heretofore passed to the contrary
no~ithstandlng: provided, that this section shall not extend
to the City and County of Philadelphia.
Condemnees cite one case in support of their proposition. Interstate Cemetery
Company Appeal, 422 Pa, 594, 222 A.2d 906 (1966).
Condemnees' reliance upon that case is misplaced. First, the Interstate court
made no doubt of Its intent when It ended Its majority opinion with the following
sentence: "This decision Is limited to the facts of this case." Interstate, 422 Pa, at 599,
-3-
The facts of the Interstate case are Indeed limited. The court was reviewing a
lower court determination that the 1849 statute could not have Included within Its
prohibition the Commonwealth of Pennsylvania because the Commonwealth,
condemnor in the Interstate matter, was not building roads In 1849,
The court reasoned that ail eminent domain authority evolves from the sovereign
and that the Commonwealth had no doubt been exercising eminent domain powers
prior to 1849, Accordingly, under the limited circumstances of that case, the
Pennsylvania Supreme Court held that the 1849 prohibition did prevent the taking.
The condemnation of the Ewings' property Is distinguishable from the situation in
Interstate and, In fact, compares favorably with the reasoning of the Berks County Court
In Good Shepard Cemetery Company v. Commonwealth, 75 D.&C,2d 203 (Berks 1976),
In that case, the Commonwealth proposed to condemn property for straightening
and widening an existing road as It intersects with a Pennsylvania route. Good Shepard
at 204, The land to be taken was utilized as parking spaces at the cemetery and
admittedly could no longer be used for parking If the condemnation were altowed to
proceed. The condemnees In Good Shepard likewise Invoked the protection of the
1849 statute and the authority of Interstate Cemetery Company. supra.
-4-
The Berks County Court was not convinced that the Act of 1849 had application
because, In the Court's view, the language of the Act Is clear and unequivocal and
relates specifically to the opening of streets, lanes, alleys or public roads. "A widening
and straightening of a road Is not an opening of a road within the meaning of the Act."
Good Shepard at 205,
While the facts In Interstate and Good Shepard are not clear as to this point, It Is
worthwhile to note that the widening of the York Road will not result in the passage of a
road through the cemetery (the precise language of the statute),
The Borough of Carlisle has taken only that land necessary to widen the York
Road right-of-way, which already borders the cemetery, BIQlillln connectlo,n with an
approved street Intersecting with York Road,
The Ewing's attempt to link the widening of York Road to the 1849 statute by
Citing the establishment of a new road which will intersect with York Road has no merit.
As long as the Borough Is widening the right-of-way of the existing road, the taking is
not prohibited because It does not ~ ~ open a road within the meaning of the Act. In
fact, as the Ewings concede in the fourth page of their Brief, the widening Is to occur in
connection with an approved street, not to establish the street itself,
-5-
.
B. Hearings or depositions to establish facts at Issue are not necessary In the
Instant case.
The facts of record are that the Borough has condemned a narrow sliver of land
In order to widen the existing right-of-way of York Road.
No additional facts are necessary to analyze this case under the Interstate and
Good ShfifJard cases presented by the parties. Contrary to Condemnees' argument this
take Is not to open a street throuah a cemetery, It clearly widens existing right-of-way,
and then only minimally.
If, however, the Court should determine that there are facts that it wishes
established on the record, the parties could do so either by stipulation or discovery, The
Borough requests that the Court set a reasonably short deadline to assure that these
Issues of fact can be properly established on the record without undue delay in further
consideration of the Preliminary Objections.
C. The declaration of taking sufficiently conforms with the Eminent Domain
Code.
Condemnees' assertion that the requirements of ~402(b)(5) of the Eminent
Domain Code Is not met by the declaration is misplaced,
-6-
While it Is true that the description at Exhibit "N of the Declaration does not state
I'm ~ that the land Is within the Borough it describes the land with particularity as a
portion of the land known as Ashland Cemetery conveyed to William Ewing, et al.
(Condemnees) by Deed at DB 14V p, 390 In the Cumberland County Recorders Office.
"Section 402(5) in describing the requirements necessary for
Inclusion In the declaration of taking requires only a
description of the property condemned sufficient for
Identification thereof." Milford Traumbauersville Area Sewer
Authority v. Approximately 0,753 Acres of Land, 25 Pa,
Comm, 13, 358 A.2d 450, 454 (1976).
If the Court Is convinced that the omission of the Borough's name on the Identity
of the property warrants amendment, the Court may order the amendment and state In
the order that further dilatory proceedings are not necessary,
Condemnees' suggestion that the so ordered amendment of the Notice of Taking
opens the door for entirely new Preliminary Objections Is not supported In the Eminent
Domain Code or In In Re Powell, 14 D.&C.3d 38 (1980), the case cited In their brief, To
the contrary, the Powell court emphasized in quoting 26 P.S, 91-406(e): ",.. The court
may allow amendment or direct the fillna of a more soecific declaration of ta~lng.
(emphasis supplied in original). In Re Powell at 40.
-7-
.
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V. CONC!JUSION
For the reasons above stated, the Condemnor respectfully prays that this Court
will confirm that Its taking of the property Is appropriate dismissing Condemnees'
Preliminary Objections, thereby maintaining title In the Borough,
Respectfully submitted,
METTE, EVANS & WOODSIDE
B~~
DAVID A. FITZSIMONS, ESQUIRE
Supreme Court I,D, #41722
3401 North Front Street
P,O, Box 5950
Harrisburg, PA 17110-0950
(717) 232.5000
Attorneys for Condemnor
The Borough of Carlisle
DATED: 04/13/95
CERTIFICATE OF SERVICE
I, DAVID A. FITZSIMONS, ESQUIRE, hereby certify that on the ~ day of
APRIL, 1995, I served a copy of the foregoing document upon the person(s) and In the
manner Indicated below, which service satisfies the requirements of the Pennsylvania
Rules of Civil Procedure, by depositing a copy of same In the U,S. mall, First-class
postage prepaid, as follows:
Robert G, Frey, Esquire
FREY & TILEY
5 South Hanover Street
Carlisle, PA 17013
METTE, EVANS & WOODSIDE
B~~
DAVID A. FITZSIMONS, ESQUIRE
Supreme Court 1.0. #41722
3401 North Front Street
P,O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
-
Attorneys for Condemnor
The Borough of Carlisle
29919-1
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
IN RE: CONDEMNATION PROCEEDING
BY BOROUGH OF CARLISLE FOR THE
CONDEMNATION OF PROPERTY OF
WILLIAM M. EWING and SEYMOUR A.
EWING
.
.
.
.
:
.
THE BOROUGH OF CARLISLE,
Appellant
:
.
.
.
.
:
.
.
: No. 2395 C.D. 1995
NOTICE OF DISCONTINUANCE
This is to notify you that the above-captioned matter has been withdrawn
discontinued and ended.
DATE: January 4, 1996
TRIAL COURT NO: 95-436CIVIL
eR $:a3~:-;
DEPUTY PROTHONOTARY/CHIEF CLERK
CERTIFIED FROM T~E nECuRD
ANI) Olil'EI1 PIT
JAN ,1 1986
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RE: BOROUGH OF CARLISLE v. W. EWING, ET AL
Lower Court No: 95-436CIVIL
Appealed Date: August 24, 1995
County: Cumberland
Commonwealth
Docket #: 2395 C.D. 1995
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
CERTIFICATE OF CONTENTS OF REMANDED RECORD
AND NOTICE OF REMAND UNDER
PENNSYLVANIA RULES OF APPELLATE PROCEDURE 2571 AND 2572(e)
THE UNDERSIGNED, Prothonotary or Deputy Prothonotary of the
Commonwealth Court of Pennsylvania, the said court being a court of
record, does hereby certify that annexed to the original hereof is the
whole and entire record as remanded from the Commonwealth Court, in
compliance with Pennsylvania Rules of Appellate Procedure 2571 and
2572(e).
An additional copy of this certificate is enclosed with the
original hereof and the clerk or prothonotary of the lower court or the
head, chairman, deputy or secretary of the government unit is hereby
directed to acknowledge receipt of the remanded record by executing
such copy at the place indicated and by returning the same IMMEDIATELY.
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Office of the Chief Clerk
Commonwealth Court of Pennsylvania
P.O. BOlC 11730
South Office Building
Harrisburg, PA 17108
(717) "'-3215 (jRff~
Deputy Prothonotary/Chief Clerk
(Seal of Court)
Record Received:
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Reason for
Remand
Date record
Remanded
Discontinuance
January 18, 1996
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CERTI FICA"E AND TRANSMITTAl. OF IlECORD
UNDER
PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (c)
To the Prothonotary of the Appellate Court to which the
within matter has been appealed:
COMMONWEALTH COURT OF PENNSYLVANIA
THE UNDEIlSIGNED, Prothonotary of the Court of Common Pleas
of CUMBERLAND County, the said court being a court of record,
do hereby certify that annexed hereto is a true and correct copy
of the whole and entire record, including an opinion of the court
as required by PA R.A.P. 1925, the original papers and exhibits,
if any on file, the transcript of the proceedings, if any, and the
docket entries in the following matter:
Case No. 95-436 Civil Term; No. 2395 C. D. 1995
In Re: Condemnation Proceeding by Borough of Carlisle
for the Condemnation of Property of
William M. Ewing and Seymour A. Ewing
The documents compr~s~ng the record have been numbered
from No.1 to No. 62 ,and attached hereto as Exhibit A is a
list of the documents correspondingly numbered and identified with
reasonable definiteness, including with respect to each document,
the number of pages comprising the document.
The date on which the record has been transmitted to the
appellate court is November 20. 1995
(Seal of Court)
GuJ~
Prothonotary
An additional copy of this certificate is enclosed. Please
sign and date copy. thereby acknowledging receipt of this record.
RECORD IlECEIVED:
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Date:
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Commonwenlth of Pennsylvnnin
County of Cumberland
1 ss:
No. 2395 C.D. 1995
I, Lawrence E, Welker ,Prothonotary
of tbe Court of Common Pleas in nnd for said
County. do hereby certify that the foregoing is n
full. lrue and correct copy of the whole record of the
case therein stated, wherein
In He: Condemnation Proceedino bv
Borouoh of Carlisle for the
Condemnfltion of Pronertv of
wi 11 ;~m M Pt.dn~ ;tnn c:::!Oj~1tT" ~
Ewing
Defendant _. as lhe snme remnins of record
bcrore tbe said Courl nt No. 95-436 of
Civil Term, A.D. 19_.
hnve hereunto sct my hand nnd nflixed lhe senl of snid Courl
day of vember A. D. 19--2.5..
In TESTIMONY WHEREOF, I
this 'l\\<entle\:h
Prnlhonotary
I. Harold E. Sheely President Judge of the Ninth
Judieial District, composed of the County of Cumberland, do certify that Lawr..nc.. F.. W..l kpr.
Prothonotary . by whom the nnnexed record. cerlificale and
attestation were mndc and givcn, and who, in his own proper handwriting. lhereunto subscribed his name
and nflixed the senl of the Court of Common Pleas of snid County. was. all he lime of so doing, and now is
Prothonotary in and for snid County of CumhPrl flnn in
the Commonwealth of Pennsylvania. duly commissioned and qualified 10 all of whose acts assuch full faith
and credit arc and ought to be given as well in Courts of judicaturc as elsewhcre, nnd thatlhe said record,
certificate and attestation nre in due form of law nnd m~ e by lhe pr~pe!~,oflicer. ; t" e.
, CLA.." f:-, / I/l...e.c.-- (
Commonwealth of Pennsylvania
County of Cumberlnnd
} ss:
I. Lall-T?nCe E, ~Ielker , I'rothonotnry of the Court of Common Plens in
nnd for the snid County, do ecrtify that the Honornble HRrnln F.. Rhpply
by whom the foregoing attestntion was madc. nnd who has thereunto subscribed his name, wns, nt the lime
of mnking thereof. and still is President Judge of the Court of Common Pleas, Orphan' Courl and Court of
Quarter Sessions of the Peace in nnd for said County, duly Commissioned and qualified: 10 all whose acts
as such full faith nnd credit arc and ought to bc given, as well in Courts of judicature as elsewhere,
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IN RE: Condemnation Proceeding
by Borough of Carlisle for the
Condemnation of Property of
William M, Ewing and
Seymour A. Ewing
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO, tJ5 . J /.3 & Uv;O -:JI2'-'~1
Eminent Domain
DECLARATION OF TAKING
NOW COMES tbe Borough of Carlisle, by il~ counsel, Mette, Evans & Woodside and
liIes this action, averring as follows:
1. That the Borough of Carlisle ("Borough"), 53 West South Street, Carlisle,
Cumberland County, Pennsylvania, is a body corpor'dte and politic of the Commonwealth of
Pennsylvania, organized for the purpose of exercising public and essential governmental
functions,
2, That the Borough of Carlisle has the power of eminent domain, pursuant to 53
P,S, Section 46501, et seq.
3, That the taking deseribed herein is authori7.cd by Resolution duly adopted on
December 8, 1994, lodged for record in the minutes of said Borough,
4, That possession of each of the parcels of land described herein is being taken
by Borough of Carlisle for the following public purposes:
As required additional right-of-way along York Road (S, R, (074) in
connection with an approved street intersecting with said York Road,
S, That a description of each parcel of land to be taken is set forth in the attached
Exhibit" A", and made a part hereof,
6, That the estate or interest in the parcel so taken is a fee simple absolute,
7, That a plan showing the property condemned is attached hereto and made a
part hereof as Exhibit "B".
I ".
.
8, That the sum of money eSlimaled 10 be just compensalion for lhe taking of lhe
eslate or inlerest in each parcel or land sel rorth in Exhibit "A" and "B" is $6,000, which
amount is hereby offered 10 Condemnee. Such jusl compensalion is secured by lhe laxing
power or The Borough or Carlisle.
BOROUGH OF CARLISLE
BY:
\.J\ ^,)l1,J~~JJ \A r ~.A A_
53 W. South Slreel
Carlisle. PA 17013
(717) 249-4422
DATED: Januaryo'l ,1995
~ETIll' EVANS & WOODSIDE
BY: ~ ~~~1S\\'",";
David A, Fitzsimons, Esquire
34111 North Front Street
P.O. Box 5950
Harrishurg, PA 17110.0950
(717) 232-5000
"
Allomeys for Borough or Carlisle
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IN RE: Condemnation Proceeding
by Borough of Carlisle for the
Condemnation of Property of
William M. Ewing and
Seymour A. Ewing
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
NO. 95-436 Civil Term
Eminent Domain
CERTIFICATE OF SERVICE
I hereby certify as counsel for the Condemnor in the above referenced action,
that on January 31,1995, I hand delivered to counsel for the Condemnees a Notice of
Condemnation incorporating a time-stamped copy of the Declaration of Taking upon
counsel for the Condemnees, Robert M. Frey, Esquire, at 5 South Hanover Street,
Carlisle, PA 17013.
Said service is in accordance with 26 P,S. ~1-405(b) and was accepted on behalf
of Condemnees by counsel for Condemnees as evidenced in the attached letter dated
January 31,1995.
METTE, EVANS & WOODSIDE
B~~" ,-,
DAVID A. FITZSIMONS, ESQUIRE
Supreme Court I.D. #41722
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
Attorneys for Condemnor
DATED: 02/06/95
18865-1
IN RE: Condemnation Proceeding by
Borough of Carlisle for the
Condemnation of Property of
William M. Ewing and
Seymour A. Ewing
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
,
: NO. 95.436 Civil Tcnn
: Eminent Domain
To: David A. Fitzsimons, Esquire
Melle, Evans & Woodside
340 I North Front Street
Harrisburg, Pennsylvania 17110-0950
The Borough of Carlisle
53 West South Street
Carlisle, Pennsylvania 17013
You are hereby notified to file a written response to the enclosed Preliminary Objections
within twenty (20) days from service hereof or a judgment may entered against you.
By:
d,
obert G. Frey, Esqui e
Supreme Court Number 46397
5 South Hanover Street
Carlisle, Pennsylvania 17013
(717) 243.5838
/0
IN RE: Condemnation Proceeding by
Borough of Carlisle for the
Condemnation of Property of
William M. Ewing and
Seymour A. Ewing
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
.
.
: NO. 95-436 Civil Tcnn
: Eminent Domain
PRELIMINARY OBJECTIONS PURSUANT. TO THE EMI~
JlOMAIlS CODE. 26 P.S. !H.406
I. Condemnor Lacks Ri2ht or Power to Condemn
AND NOW, come William M. Ewing and Seymour A. Ewing, Property owners and
Condemnees named in the above-caption action, by and through Frey & Tiley Attorneys at Law
and respectfully state as follows:
I, The Borough of Carlisle filed a Dcclaration of Taking to the above term and number on
January 27, 1995.
2, The Declaration of Taking purports to take property of William M. Ewing and Seymour
A, Ewing by virtue of the power of eminent domain, pursuant to 53 P.S, ~4650 I, et seq,
3, The Declaration of Taking states thntlhe property is being laken "As required additional
right-of-way along York Rond (S.R. 0074) in connection with an approved street intersecting with
said York Road,"
4, It is believed and averred that the street intersecting with York Road is not presently
opened and that the reason for the taking in the above-captioned eminent domain action is in
required for and directly related to the opening of a new strecl, road, or highway,
5, It is believed and averred that the taking in the above-captioned eminent domain action
is not in connection with a general widening of S.R. 0074, known as the York Road and that
although numerous properties have frontuge along the York Road, only the property of William M,
Ewing and Seymour A, Ewing is being taken pursuant to the ubove-captioned eminent domuin
action.
6. The property purported to be tllken is a purl of a cemetery known us Ashlwld Cemetery,
II
7, Pursuant to Act of AprilS, 1849, P.L. 397, * I, 9 P.S, *8, "It shallllot be lawful 10
open any street, lane, alley or public road through any burial ground or cemetery within this
commonwealth, any law, heretofore passed to the contrary notwithstanding......
8, The purported tnking of the Borough of Carlisle is in direct contradiction to the express
limitation contained in 9 P,S. *8 as it is an allempt to open a street, lane, ulley or public road
through a cemetery. The Borough, therefore, lucks the power or righlto uppropriate the property
purported to be condemned.
9, The power or right of the Borough of Curlisle to condemn any part of the property
known as Ashland Cemetery hus not been previously been adjudicated.
10, A condemnee may challenge by preliminary objections "the power or right of the
condemnor to appropriate the condemned property unless the same has been previously
adjudicated...... 26 P.S, * 1-406(a).
WHEREFORE, William M. Ewing and Seymour A, Ewing, property owners and
condemnees in the above-caption action respectfully requestlhis Court to enter an Order in their
favor and against the Borough of Carlisle revesting to them lille to the premises purported to be
condemned,
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JI. The ~Iaration of ::rl!kin~ Fails to Comply with 26 P.S. !i 1.402
11, Paragraphs I lhrough 8 arc incorporated herein by reference.
12. The Eminent Domain Code, 26 P.S. * l-402(b)(5), requires thut a declaration of taking
include "A description of the property eondelllned sufficient for identification thereof, specifying
the city. borough, township or town and the county or counlies wherein the property taken is
located"....
13, The Borough has failed to comply with the ubove-mentioned provisions of the Eminent
Domain Code because it has failed 10 provide a description of the property which specifics the
municipality in which the property is located.
.'
WHEREFORE. William M. Ewing and Seymour A. Ewing, property owners and
condemnees in the ubove-caption action respectfully reqllestthis Court to enter un Order in lheir
favor and ugainstthe Borough of Carlisle revesting to them title to the premises purported to be
condemned, or in the alternutive, to direct the Borough of Carlisle to file a more specific
Declaration ofTuking.
Respectfully submitted,
Frey & Tiley,
Attorneys for William M, Ewing and
Seymour A. Ewing, property owners and
Condemnees
By:
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Robert G, Frey, Esquire
Supreme Court Number 46397
5 South Hanover Street
Carlisle, Pennsylvania 17013
(717) 243.5838
I verify thai lhe statements made herein are true and correct and undersland that false
statements herein are made subject to the penalties of 18 PU. C, S, A. ~ 4904 relating to unsworn
falsification to authorities,
Dated: February 27,1995
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I, Robert G, Frey, do hereby certify that I am lhis day serving a true and correct copy of the
foregoing Preliminary upon the Condemnor herein by pre-paid first class mail, to their counsel of
record at the following address:
David A, Fitzsimons, Esquire
Melle, Evans & Woodside
3401 North Front Street
Harrisburg, Pennsylvania 17110,0950
Dated: February 27, 1995
.1.
Robert G. Frey
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IN RE: Condemnation Proceeding by
Borough of Carlisle for the
Condemnation of Property of
William M. Ewing and
Seymour A. Ewing
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
,
: NO. 95-436 Civil Tenll
: Eminent Domain
.
,
~OTICE TO PLEAD
To: The Borough of Carlisle
53 West South Streel
Carlisle. Pennsylvania 17013
You arc hereby notified to file a wrillen response to lhe enclosed Amended Preliminary
Objections within tweney (20) days from service hereof or ajudgment may entered lIgainst you.
~~d~
~--
Robert G, Frey, Esquire
Supreme Court Number 46397
5 South Hanover Street
Carlisle, Pennsylvania 17013
(717) 243.5838
IN RE: Condemnation Proceeding by
Borough of Carlisle for the
Condemnation of Property of
WIlliam M. Ewing and
Seymour A. Ewing
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL VANIA
.
.
: NO, 95-436 Civil Tenn
.
: Eminent Domain
AMEWED ~RELlMINARY OB.JECTJQlSS PURSUANJ' TO THE
EMIr-lEID' DOMAI1S' CODE, 26 P.S. !H-406
AND NOW, come William M. Ewing and Seymour A. Ewing, Property owners and
Condemnees named in the above-caption action, by and through Frey & Tiley Attorneys at Law,
and respectfully stale as follows:
I, The Borough of Carlisle filed a Declaration of Taking to the above tenn and number on
January 27, 1995 and served the Notice of Taking dated February I, 1995 upon the above-named
property owners on February 2, 1995,
2, Preliminary Objections to lhe Declaration of Taking were filed by the above-named
property owners on February 27, 1995 and were attempted to be served on counsel for the
Condemnor.
3, The attempted service of lhe Preliminary Objections was not made within the time
frame required by 26 P.S. ~ 1-406(d).
4. The within Amended Preliminary Objections raise no new issues for consideration by
lhe Court and are filed solely for the purpose of achieving service thereof within 72 hours of filing
as required by 26 P.S. ~1-406(d),
5, The within Amended Preliminary Objections are filed within thirty days of the date of
Notice of Thking, February I, 1995 and wilhin 30 days of the date of service of the Notice of
l'.1king on February 2, 1995, and are, therefore, timely filed as required by 26 P.S. ~ 1-406(a),
6. Amended Preliminary Objections may be filed within the 30-day statutory period of
filing preliminary objcctions. Commonwenlth Departmcnt of Transportation v. Schodde. 61 Pa,
Commonwealth Cl, 77, 433 A.2d 143, (1981),
I. Condemnor Lacks Ril:ht or Power to Condemn
I'
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7, Paragraphs I through 6 arc incorporated herein by reference.
8, The Declaration of Taking pllrports to take property of William M. Ewing and Seymour
A, Ewing by virtlle of the power of eminent domain, pursuant to 53 P.S, ~4650 I, el seq.
9. The Declaration of Taking states thatlhe property is being taken "As required additional
right-of-way along York Road (S.R, 0074) in connection with an approved street intersecting with
said York Road."
10, It is believed and averred that the street intersecting with York Road is not presently
opened and that the reason for the taking in the above-captioned eminent domain action is in
required for and directly related to the opening of a new street, road, or highway,
II, It is believed and averred that the taking in the above-captioned eminent domain action
is not in connection with a general widening of S.R. 0074, known as the York Road and that
although numerous properties have frontage along the York Road, only the property of William M.
Ewing and Seymour A. Ewing is being taken pursuant to the above-captioned eminent domain
action,
12, The property purported to be taken is a part of a cemetery known as Ashland Cemetery,
13, Pursuanlto Act of April 5, 1849, P.L, 397, ~I, 9 P.S, ~8, "It shall nOl be lawful to
open any street, lane, alley or public road through any burial ground or cemetery within this
commonweaIlh, any law, heretofore passed to the contrary notwithstanding...."
14, The purported taking of the Borough of Carlisle is in direct contradiction to the express
limitation contained in 9 P.S, ~8 as it is an allemptto open a street, lane, alley or public road
through a cemetery. The Borough, therefore, lacks the power or righlto appropriale the property
purported to be condemned.
15. The power or right of the Borough of Carlisle to condemn any part of the property
known as Ashland Cemetery has not been previously adjudicated.
16, A eondemnee may challenge by preliminary objections "the power or right of the
condemnor to appropriate the condemned property unless the same has been previously
adjudicated...." 26 P.S. ~ 1-406(a).
WHEREFORE, William M. Ewing and Seymour A, Ewing, property owners and
condemnees in the above-caption action respectfully request this Court to enter an Order in their
favor and against the Borough of Carlisle revesling to them title to the premises purported to be
condemned.
D. The Declaration of Takine Fails to Comply with 26 P.S. !l 1~
17, Paragraphs I through 16 are incorporated herein by reference,
18, The Eminent Domain Code, 26 P.S, ~ 1-402(b)(5), requires thai a declaration of laking
include "A description of the property condemned sufficienl for identification thereof, specifying
the city, borough, township or town and the county or counties wherein the property taken is
located.. .."
19, The Borough has failed to comply with the above-mentioned provisions of the Eminent
Domain Code because it has failed to provide a description of the property which specifies the
municipality in which the property is located.
WHEREFORE, William M, Ewing and Seymour A. Ewing, property owners and
condemnees in the above-caption action respectfully request this Court to enter an Order in their
favor and against the Borough of Carlisle revesting to them title to the premises purported to be
condemned, or in the alternative, to direct the Borough of Carlisle to file a more specific
Declaration of Taking,
Respectfully submitted,
Frey & Tiley,
Attorneys for William M, Ewing and
Seymour A. Ewing, property owners and
Condemnees
By:
.1" ""-c>l~ -1/
Robert G. Frey, Esquire
Supreme Court Number 46397
5 South Hanover Street
Carlisle, Pennsylvania 17013
(717) 243-5838
I, Robert G, Frey, do hereby certify that I am this day serving a true and correct copy of the
foregoing Amended Preliminary Objections upon the Condemnor herein by hand delivering the
same,to its office at the following address:
Borough of Carlisle
53 West South Street
Carlisle, Pennsylvania 17013
Dated: March 3, 1995
Robert G, Frey
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I. Condemnor has Right or Power to Condemn
7. The averments of Paragraphs 1 through 6 of this Reply are incorporated
herein by reference as if fully set forth.
8. Admitted.
9. Admitted.
10. Denied. It is specifically denied that the taking in the above captioned
action is required for and directly related to the opening of a new street, road or
highway. To the contrary, the taking is related to the Pennsylvania Department of
Transportation ("PennDOT') requirements for minimum width of right-of-way of the
existing York Road to facilitate the installation of a controlled intersection.
11. Admitted in part and denied in part. It is admitted only that solely property
of William M. and Seymour A. Ewing is being taken pursuant to the above captioned
eminent domain action. Any inference that the taking is improper because other
properties with frontage along York Road are not being condemned is specifically
denied. To the contrary, PennDOT requirements relating to the need for the taking are
limited to property owned by the Ewings.
12. Denied. The averments of Paragraph 12 constitute conclusions of law to
which no responsive pleading is required under the PaRC.P. To the extent a response
is deemed required, it is believed and therefore averred that while the entire property
owned by the Ewings is operated generally as a cemetery known as Ashland Cemetery,
it is specifically denied that the small portion of that property condemned under the
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cemetery itself.
13. Denied. The averments of Paragraph 13 constitute conclusions of law to
which no responsive pleading is required under the Pa.R.C.P.
14. Denied, The averments of Paragraph 14 constitute conclusions of law to
which no responsive pleading is required under the Pa.R.C.P. To the extent a response
is deemed required, it is specifically denied that the taking of the Borough is an attempt
to open a street, lane, aliey or public road through a cemetery. To the contrary, the
taking merely relates to a necessary widening of a portion of York Road in accordance
with PennDOT requirements.
15. Admitted.
16. Denied, The averments of Paragraph 16 constitute conclusions of law to
which no responsive pleading is required under the PaRC.P.
WHEREFORE, Condemnor, The Borough of Carlisle, respectfuliy prays that this
Court will enter an Order dismissing the Preliminary Objections of Condemnees.
II. The Declaration of Takina ComDlies with 26 P.S. &1-402
17. The averments of ParagraphS 1 through 16 of this Reply are incorporated
herein by reference as if fully set forth.
18, Denied. The averments of Paragraph 18 constitute conclusions of law to
which no responsive pleading is required under the PaRC.P. To the extent a response
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is deemed required, 26 P.S, 9402(b)(5) being an instrument in writing, speaks for itself.
To the extent that the averments of Paragraph 18 and following of the Preliminary
Objections are inconsistent therewith, they are specifically denied.
19. Denied. The averments of Paragraph 19 constitute conclusions of law to
which no responsive pleading is required under the Pa.R.C.P. To the extent a response
is deemed required, it is denied that the Borough has failed to comply with the
requirements of the Eminent Domain Code, By way of further response it is believed
and therefore averred that the description of the property provided with the Declaration
of Taking is sufficient for Identification thereof as is evidenced by the ability of the
Condemnees to recognize the property taken as their own as is further evidenced by
their filing of the Preliminary Objections in this action,
WHEREFORE, Condemnor, The Borough of Carlisle, respectfully prays that this
Court will enter an Order dismissing the Preliminary Objections of Condemnees,
Respectfully submitted,
METTE, EVANS & WOODSIDE
BY: (. ./
DAVID A. FITZSIMON ,ESQUIRE
Supreme Court J.D. #41722
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
Attorneys for Condemnor
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CERTIFICATE OF SERVICE
I, DAVID A. FITZSIMONS, ESQUIRE, hereby certify that on the 23rd day of
March, 1995, I served a copy of the foregoing document upon the person(s) and in the
manner Indicated below, which service satisfies the requirements of the Pennsylvania
Rules of Civil Procedure, by hand delivery, as follows:
Robert G. Frey, Esquire
FREY & TILEY
5 South Hanover Street
Carlisle, PA 17013
METTE, EVANS & WOODSIDE
BY:
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DAVID A. FITZSIMONS, ESQUIRE
Supreme Court I.D. #41722
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
Attorneys for Condemnor
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IN RE:
CONDEMNATION PROCEEDING
BY BOROUGH OF CARLISLE FOR
THE CONDEMNATION OF PROPERTY
OF WILLIAM M. EWING and
SEYMOUR A. EWING
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 95-436 CIVIL TERM
IN RE: CONDEMNEES' AMENDED PRELIMINARY OBJECTIONS
BEFORE SHEELY. P.J.. AND OLER. J.1
ORDER OF COURT
AND NOW, this t-2.-d- day of AUGUST, 1995, upon
careful consideration, the condemnees' exception to the
Declaration of Taking filed by the Borough of Carlisle is
SUSTAINED. We hereby order that the title of the portion of land
in question be revested to the condemnees.
By the Court,
MeL' J P J"-
H rold E. Sheely, P.J.
Robert G. Frey, Esquire
For the Ewings
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David A. Fitzsimons, Esquire
For Condemnor The Borougl. of Carlisle
:sld
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lJudge Oler did not participate in the disposition of this
case.
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IN RE:
CONDEMNATION PROCEEDING
BY BOROUGH OF CARLISLE FOR
THE CONDEMNATION OF PROPERTY
OF WILLIAM M. EWING and
SEYMOUR A. EWING
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
.
.
.
.
:
.
.
.
.
.
.
NO. 95-436 CIVIL TERM
.
.
IN RE: CONDEMNEES' AMENDED PRELIMINARY OBJECTIONS
BEFORE SHEELY. P.J.. AND OLER. J.
OPINION AND ORDER OF COURT
This matter is before the Court today on the Condemnees'
Preliminary Objection pursuant to the Eminent Domain Code, 26
P.S. Section 1-406, to the Declaration of Taking filed by the
Borough of Carlisle. We heard argument on April 19, 1995.
FACTS
The Borough of Carlisle filed a Declaration of Taking on
January 27, 1995. (Amended Prelim. Obj. para. 1). In the Being
Clause of the Declaration, the Borough identified the area to be
taken as "a portion of the land known as 'Ashland Cemetery' and
which was conveyed to William M. Ewing, et al. by Deed. . ."
(Decl. of Taking Ex. A). The portion of land which the Borough
of Carlisle is attempting to take is a narrow triangle containing
1,818.737 square feet of land along the legal right-of-way of
York Road. (Id. at Ex. A, B). The Borough described the reason
for the taking as "required additional right-of-way along York
Road (S.R. 0074) in connection with an approved street
intersecting with said York Road." (Id. at para. 4). The
property owners were served with the Notice of Taking on February
2, 1995 and filed Preliminary Objections to the Declaration of
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Taking on February 27, 1995. (Id. at para. 1, 2). Because the
attempted service of the Preliminary Objections was not made
within the time frame required by 26 P.S. section l-406(d),
Amended Preliminary Objections were filed to conform to the time
requirement. (Id. at para. 4,5).
DISCUSSION
In their Amended Preliminary Objections, the condemnees
allege that (1) the condemnor lacks right or power to condemn
because attempting to open a street through a cemetery is
prohibited by Act of April 5, lB49, P.L. 397, Section 1, 9 P.S.
section B; and, (2) the Declaration of Taking Fails to Comply
with 26 P.S. Section 1-402 because the Borough of Carlisle failed
to provide a description of the property which specifies the
municipality in which the property is located. The condemnees
are requesting that we enter an Order in their favor and against
the Borough of Carlisle revesting to them title to the premises
purported to be condemned, or in the alternative, an Order that
the Borough of Carlisle file a more specific Declaration of
Taking.
When examining a preliminary objection to a declaration of
taking, "The court shall determine promptly all preliminary
objections and make such preliminary and final orders and decrees
as justice shall require, including the revesting of title." 26
P.S. Section l-406(e). Under the Municipalities Planning Code,
"In the laying out, opening, widening, extending, vacating,
grading, or changing the grades or lines of streets . . . a
2
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borough may enter upon, appropriate, injure, or destroy, private
lands, property or material, according to the proceedings set
forth in the law governing eminent domain." 53 P.S. Section
46501. Although a borough is vested with this power of eminent
domain, the Pennsylvania State Legislature has established some
limitations:
It shall not be lawful to open any street,
lane, alley or public road through any burial
ground or cemetery within this commonwealth,
any laws heretofore passed to the contrary
notwithstanding: Provided, That this section
shall not extend to the city and county of
Philadelphia.
Act of April 5, 1849, P.L. 397, section 1, 9 P.S. Section 8
(Supp. 1965) (hereinafter Act of 1849).
The Pennsylvania Supreme Court had occasion to determine the
scope of the Act of 1849 in Interstate Cemeterv Co. Appeal, 422
Pa. 594, 222 A.2d 906 (1966), a case where the Commonwealth of
Pennsylvania condemned for highway construction a portion of
cemetery. ~. at 907. The Pennsylvania Supreme Court held that
the preliminary objections to the declaration of taking should
not have been dismissed because the Act of 1849 "clearly and
unequivocally exempted cemeteries and burial grounds in this
Commonwealth (with the exception of Philadelphia) from 'taking,'
through Eminent Domain for road and highway construction." Id.
at 908. Furthermore, our Supreme Court reasoned that the Act of
1849 manifests "a strong policy in this Commonwealth against any
disturbances of cemoteries or burial grounds for road
construction." Id.
3
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In the present case, the parcel of land which the Borough of
Carlisle is attempting to take is cemetery land which is
established by the Borough's identification of the land as "a
portion of the land known as 'Ashland Cemetery' .. " (Decl. of
Taking Ex. A). In their Declaration of Taking, the Borough of
Carlisle admits that the taking of the land is '''in connection
with an approved street intersecting with said York Road" (Id. at
para. 4), which, in essence, is a taking for the purpose of road
construction. We choose not to adopt the reasoning of the Berks
County Court who ruled in Good Shepherd Cemetery v. Commonwealth,
75 D & C.2d 203 (1976), that "[a] widening and straightening of a
road is not an opening of a road within the meaning of the Act."
Id. at 205. Moreover, the facts of Good Shepherd are quite
different in that the parcel of land to be taken"was a parking
lot area which the cemetery had no plans to designate as a burial
site. By widening an existing road "in connection with an
approved street intersecting with said York Road" (DecL of
Taking para. 4), the Borough of Carlisle is opening a road
through the front portion of the Ashland Cemetery which is
explicitly prohibited by the Act of 1849. Based on Interstate's
interpretation of the Act of 1849, and the Pennsylvania Supreme
Court's desire to prohibit the taking of cemetery land for road
and highway construction, the Condemnees' Amended preliminary
Objections to the Borough's Declaration of Taking is sustained
because of this finding, the second preliminary objection is
moot.
4
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ORDER OF COURT
AND NOW, this ~..;1.nd day of AUGUST, 1995, upon
careful conoideration, the condemnees' exception to the
Declaration of Taking filed by the Borough of Carlisle is
SUSTAINED. We horeby order that the title of the portion of land
in question be revested to the condemnees.
By the Court,
/s/ Harold E. Sheely
Harold E. Sheely, P.J.
Robert G. Frey, Esquire
For the Ewingo
David A. Fitzsimons, Esquire
For Condemnor The Borough of Carlisle
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IN RE: Condemnation Proceeding by :
Borough of Carlisle for the
Condemnation of Property of
William M. Ewing and
Seymour A. Ewing
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
NO. 95-436 Civil Term
NOTICE OF APPEAL
Notice is hereby given that The Borough of Carlisle, Condemnor above
named, hereby appeals to the Commonwealth Court of Pennsylvania from the
order filed in this matter on the 24th day of August, 1995. This order has been
entered in the docket as evidenced by the attached copy of the docket entry.
Respectfully submitted,
METTE, EVANS & WOODSIDE
"'- ~.,~
BY: ~\) ~. \-~c,.,I\'''~
DAVID A. FITZSIMONS, ESQUIRE
Supreme Court LD. #41722
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
Attorneys for Condemnor
PYS5l0
1995-00436
Cumb~land County Prothonotary's~ffice Page 1
, 'Civil Case Inquiry ,
DECLARATION OF TAKING Filed......... 1/27/95
8:09
Superior Co
Execution Date
Sat/Dis/Gntd. .
Jury TriaL...
********************************************************************************
General Index Attorney Info
CARLISLE BOROUGH OF CONDEMNOR FITZSIMONS DAVID A
EWING WILLIAM M CONDEMNEE FREY ROBERT G
EWING SEYMOUR A CONDEMNEE FREY ROBERT G
********************************************************************************
* Date Entries *
********************************************************************************
Judge Assigned:
'Judgment:
SHEELY HAROLD E PJ
.00
0/00/00
0/00/00
01/27/95
02/13/95
02127195
03/03/95
03/30/95
08/24/95
DECLARATION OF TAKING - BOROUGH OF CARLISLE
CERTIFICATE OF SERVICE
PRELIMINARY OBJECTIONS PURSUANT TO THE EMINENT DOMAIN CODE 26 PS
1-406
AMENDED PRELIMINARY OBJECTIONS PURSUANT TO THE EMINENT DOMAIN CODE
26 PS 1-406
PRAECIPE FOR LISTING CASE FOR ARGUMENT BY DAVID A FITZSIMONS ESQ
OPINION AND ORDER OF COURT - IN RE CONDEMNEES' AMENDED PRELIMINARY
OBJECTIONS - SUSTAINED - BY HAROLD E SHEELY PJ - COPIES MAILED
8/24/95
********************************************************************************
* Escrow Information *
* Fees & Debits Beq Bal Pvmts/Ad1 End Bal *
************************************************'*******************************
35.00 35.00 .00
.50 .50 .00
5.00 5.00 .00
5.00 5.00 .00
------------------------ ------------
45.50 45.50 .00
********************************************************************************
* End of Case Information *
********************************.***********************************************
DECLAR/TAKING
TAX ON DECLAR
SETTLEMENT
JCP FEE
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In Tast/mon wh RECORD
rond tlr saar or ~,efI~ ' ~(~tunto set my hand
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IN RE: Condemnation Proceeding: IN THE COMMONWEALTH COURT OF PA
by Borough of Carlisle for the : No. 2395 CD 95
Condemnation of Property of : IN THE COURT OF COMMON PLEAS
William M. Ewing and : OF CUMBERLAND COUNTY, PA
Seymour A. Ewing No. 95-436 Civil Term
AMENDED
CERTIFICATE OF SERVICE
I hereby certify that on the ~ day of SEPTEMBER, 1995, I served a
copy of the Notice of Appeal of the Borough of Carlisle, Condemnor above named,
upon the Honorable Harold E. Sheely, Prcsidcnt Judge, Cumberland County
Courthouse, Carlisle, Pennsylvania VIA HAND DELIVERY which service
satisfies the requirements of the Pennsylvania Rules of Civil Procedure.
METTE, EVANS & WOODSIDE
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DAVID A. FITZSIMONS, ESQUIRE
Supreme Court LD. #41722
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
Attorneys for Condemnor
"1
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(JERTIFICATE OF SERVICE
I, DAVID A. FITZSIMONS, ESQUIRE, hereby certify that on the 22nd
day of SEPTEMBER, 1995, I served a copy of the foregoing document VIA HAND
DELIVERY upon the person(s) and in the manner indicated below, which service
satisfies the requirements of the Pennsylvania Rules of Civil Procedure:
Robert G. Frey, Esquire
FREY & TILEY
5 South Hanover Street
Carlisle, PA 17013
METrE, EVANS & WOODSIDE
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BY: \~SJ~' -~
DAVID A. FITZSIMONS, ESQUIRE
Supreme Court I.D. #41722
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232.5000
Attorneys for Condemnor
43919.1
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IN THE ~OMMONWEALTH COURT OF PENN~_~VANIA
NOTICE OF DOCKETING APPEAL
Docket No: 2395 C.D. 1995 Filed Date: 09/20/95
Re: BOROUGH OF CARLISLE v. W. EWING, ET AL
Lower Court No.: 95-436CIVIL
q/J.q/qs
A Notice of Appeal, a copy of which is enclosed, from an order of
your court has been docketed in the Commonwealth Court of Pennsylvania.
The docket number in the Commonwealth Court is endorsed on this notice.
The Commonwealth Court docket number must be on all correspondence
and documents filed with the Court.
Under Chapter 19 of the Pennsylvania Rules of Appellate Procedure,
the Notice of Appeal has the effect of directing the Court to transmit
the certified record in the matter to the Prothonotary of the
Commonwealth Court.
The complete record, including the opinion or the trial judge,
should be forwarded to the Commonwealth Court within forty (40) days
of the date of filing of the Notice of Appeal. Do not transmit a
partial record.
Pa. R.A.P. 1921 to 1933 provides the standards for preparation,
certification and transmission of the record.
The address to which the Court is to transmit the record is set
forth on page 2 of this notice.
NOTICE TO COUNSEL
A copy of this notice is being sent to all parties or counsel
indicated on the proof of service accompanying the Notice of Appeal.
The appearance of all counsel has been entered on the record in the
Commonwealth Court. Counsel has thirty (30) days from the date of
filing of the Notice of Appeal to file a praecipe to withdraw their
appearance pursuant to Pa. R.A.P. 907(b).
Appellant or Appellant's attorney should review the record of the
trial court, in order to insure that it is complete, prior to
certification to this Court. (Note: A copy of the Zoning Ordinance
must accompany records in zoning Appeal cases).
The addresses to which you are to transmit documents to this Court
are set forth on Page 2 of this Notice.
If you have special needs, please contact this court in writing as
soon as possible.
Lower Court Judge: Honorable Harold E. Sheely
Attorney: David A. Fitzsimons
Attorney: Robert G. Frey
Notices Exit: 09/27/95 Prothonotary
31
IN RE: Condemnation Proceeding by :
Borough of Carlisle for the
Condemnation of Property of
William M. Ewing and
Seymour A. Ewing
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
NO. 95-436 Civil Tenn
b
d3q S c () q S'
~OTICE OF APPEAL
:
Notice is hereby given that The Borough of Carlisle, Condemnor above
named, hereby appeals to the Commonwealth Court "f Pennsylvania from the
order filed in this matter 01: thr. 24th day of August, 1995. This order has been
entered in the docket as evidenced by the attached copy of the docket entry.
Respectfully submitted,
METrE, EVANS & WOODSIDE
'" I' \'
BY: ~~\h, ~.t"'I\"'~
DAVID A. FITZSIMONS, ESQillRE
Supreme Court I.D. #41722
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
Attorneys for Condemnor
TRUE COFY FROM RECORD
In Tcstl.nnr,ywl;el'J:lI. I here L!ntoSCt my hand
il!llj the reJI ol ':Jid (;~ al Caril::fll Pa.
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Prothonotary
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As of August 15, 1994
BUHBBR OF COPIES FOR FILING
COMMONWEALTH COURT
ORIGINAL AND ONE COPY
Motion for Extension (2nd - $10., 3rd & subsequsnt - $2S.)
Praecipes
Motion to Dismiss/Quash
Motion for Supersedeas
Preliminary Objections
All Pre-Trial Motions
ORIGI~ AND TWO COPIBS
Petition for Review - $5S.
Petition for permission to Appeal - $ss. (C.D.t)
Petition for Review or Appeals
Nunc Pro Tunc - SSS.
1311(b) Petition for Review - $Ss.
Petition for Reconsideration of single JUdge
Orders - original Jurisdiction - $15.
Exceptions
ORIGINAL AND PIFTEEN COPIBS
Petition for Reconsideration of sinqle Judge
Orders - Appellate Jurisdiction - $lS.
Motion to Publish opinion
Petition fo~ Reargument En Banc - $15.
PIFTEEN COPIES
Briefs
Memoranda of Law
BIGHT COPIES
Reproduced Records
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NOT ICE
The Commonwealth Court is instituting a new service in order
to speed copies of orders and opinions to attorneys litigating
cases in this Court. We will FAX copies of all orders and opinions
in a given case to counsel upon written request and the payment of
a $50.00 service charge.
If you wish to avail yourself to this service, please fill out
and return the inf~rmation below and attach a check made payable to
the Commonwealth Court of Pennsylvania in the amount of $50.00.
BE SURE TO INCLUDE THE DOCKET NUMBER OF THE CASE.
-------------------------------------------------------------------
I desire to have all orders or opinions in the below capt:oned
case faxed to me.
c\ '
Name
, Esq.
Docket Number
FAX Number
Caption
Signature
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IN RE: Condemnation Proceeding: IN THE COMMONWEALTH COURT OF PA
by Borough of Carlisle for the No. 2395 CD 95
Condemnation of Property of : IN THE COURT OF COMMON PLEAS
William M. Ewing and : OF CUMBERLAND COUNTY, PA
Seymour A. Ewing No. 95-436 Civil Term
STATEMENT OF MATI'ER
COMPLAINED OF ON APPEAL
AND NOW, comes the Borough of Carlisle, Condemnor/Appellant,
(hereinafter the "Borough") by its attorneys, METTE, EVANS & WOODSIDE, and
respectfully submits that the Court below erred in the following respects:
1. In revesting title of the condemned tract to CondemneeslAppelleesj
2. In finding that the condemnation was prohibited by the Act of
April 5, 1849, P.L. 397, Section 1,9 P.S. Section 8 (Supp. 1965) (hereinafter the
"Act of 1849").
3. In finding that the case of Interstate Cemeterv Co. Anneal, 422 Pa.
594, 222 A.2d 906 (1966) was controlling in the instant matter.
4. In finding that the Borough's action was in furtherance of the opening
of a road through a cemetery, which is in opposition to the record.
5. In finding that the widcning of an cxisting road (S.H. 74 York Road)
constitutcd the opening of a road through a cemctery.
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6. In failing to direct, prior to granting Condemnee/AppelIee's
Preliminary Objcctions, that testimony or other evidence be establishcd on record
to guide the Court's determination.
7. In basing its determination upon facts, assumptions or conclusions
not found in the record, which resultcd in erroneous findings of fact detailed above
and below.
8. In finding that Condemnor/AppelIant's declaration of taking supports
the conclusion that the taking was to facilitate the opcning of a road through a
cemetery.
RespectfulIy submitted,
METrE, EVANS & WOODSIDE
BY:
'\- ,'- C, (;' 't-
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DAVID A. FITZSIMONS, ESQUIRE
Supreme Court I.D. #41722
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
Attorneys for Condemnor/Appellant
DATED: 09/29/95
45227.1
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CERTIFICATE OF SERVICE
I, DAVID A. FITZSIMONS, ESQUIRE, hereby certify that on the 29th
day of SEPTEMBER, 1995, I served a copy of the foregoing document VIA HAND
DELIVERY upon the person(s) and in the manner indicated below, which service
satisfies the requirements of the Pennsylvania Rules of Civil Procedure:
Robert G. Frey, Esquire
FREY & TILEY
5 South Hanover Street
Carlisle, PA 17013
The Honorable Harold E. Sheely
President Judge
CUMBERLAND CO. COURTHOUSE
One Courthouse Square
Carlisle, PA 17013
METrE, EVANS & WOODSIDE
BY:
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DAVID A. FITZSIMONS, ESQUIRE
Supreme Court LD. #41722
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
43919.1
Attorneys for Condemnor/Appellant
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IN RE: Condemnation Proceeding by
Borough of Carlisle for the
Condemnation of Property of
William M. Ewing and
Seymour A. Ewing
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 95-436 Civil Tenn
: Eminent Domain
AND NOW, come Frey & Tiley, Allomeys for William M. Ewing and Seymour A.
Ewing, the Property Owners and Condemnees herein, and respectfully submit the following in
support of their motion:
FACTUAL BACKGROUND
William M. Ewing and Seymour A. Ewing ("Ewings") are the owners of a cemetery
located in the Borough of Carlisle, Cumberland County, Pennsylvania, by virtue of a deed from
Virginia M. Penrose and Ellen W. Penrose, recorded January 31, 1952 in Cumberland County
Deed Book "V". Volume 14, Page 390. The deed was conveyed under and subject to an Indenture
of Trust recorded March I I, 1867, which Indenture formally created a cemetery and laid out burial
lots for a cemetery. This cemetery is known as and has been known since that time as Ashland
Cemetery and has been operated continuously as a cemetery from before that time to the present.
In connection with their ownership of Ashland Cemetery, Ewings were approached by
1
representatives of Giant Food and later by representatives of thc Borough of Carlisle conceming
the conveyance of a portion of the cemetery land along the York Road for the purpose of opening
a new intersection and a new street. The street is to lead from the York Road. across land intended
to be purchllSed by Giant, and terminating at the intersection with South Spring Garden Street, a
public streellocaled in the Borough of Carlisle. The Ewings and Giant and, thereafter, the Ewings
and the Borough were unable to arrive at mutually agreeable terms for the conveyance of the
desired land.
Thereafter, the Borough filed its Declaration of Taking.
,....,.,
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PROCEDURAL BACKGROUND
The Borough filed a Declaration of Thking on January 27. 1995 to No. 95-436 Civil Term.
The notice to the Condemnees, pursuant to 26 P.S. ~ 1-405. was served upon the Condemnees on
February 2, 1995. The Condemnees filed Preliminary Objections pursuant to 26 P.S. ~ 1-406 and
filed amended Preliminary Objections on March 3. 1995 and served a certified copy thereof on the
same date. The Preliminary Objections raised the issue of the lack of power of the Borough to
condemn the land of the Condemnees and. in addition. raised a question regarding the sufficiency
of the fonn of the Declaration of Taking. The Preliminary Objections sought the revesting of the
condemned cemetery land in the Ewings and, in the alternative, the filing by the Borough of a
more specific Declaration of Taking.
ISSUES PRESENTED AND SUGGESTED ANSWERS
I. Whether the Borough lacks the power to condemn a portion of the cemetery for reuson
of the prohibition contained in 9 P.S. ~ 8.
Suggested Answer: The Borough is prohibited.
2. Whether PreliminnCy Objections raise questions of fact which may need to be resolved
before a detennination on the issues raised may be made.
Suggested Answer: A hearing on factual issues should be held if questions of fact exist.
3. Whetherthe Notice of Thking fails toconfonn with the Eminent Domnin Code. 26 P.S.
~ 1-402(b )(5) and should be nmended.
Suggested Answer: The Borough should be ordered to file a more specific Declnrntion of
Taking so that it complies with the requirements of the Eminent Domain Code
ARGUMENT
1. Whether the Dorough lacks the power to condemn a portion of the
cemetery for reason of the prohibition contained In 9 P.S. ~ 8.
Suggested Answer: The Dorough Is prohibited.
While it is truc that the power of cminent domain is a powcr of thc Commonwealth of
Pennsylvania which is derived from the common law and not from stlltule. the power may be
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exercised only through statutorily authorized means and agencies. Interstate Cemetery CompilllY.
Appeal. 422 Pa. 594, 222 A.2d 906 (1966). The aorough relics on the Municipalities Planning
Code, 53 P.S. ft 46501, el seq., as its enabling statute.
While a borough is empowered to take land by eminent domain, that power is subject to
statutory limitations, exemptions, and procedural requirements for its execution. In this instancc,
thc limitation and prohibition is containcd in the Act of April 5, 1849. P.L. 397 ft I, 9 P.S. ft8 as
follows:
It shall not be lawful to opcn any strcct, lane, alley or public road through any
burial ground or cemctcry within this commonwealth, any laws hcrctoforc passcd
to the contrary notwithstanding: Provided, That this section shall not cxtend to the
city and county of Philadelphia.
As the Supreme Court has explained, the legislature recognizcd the importance of protccting
cemeteries from intrusion.
By the Act of 1849, supra, the legislature clearly and unequivocally cxemptcd
cemeteries and burial grounds in this Commonwealth (with the exception of
Philadelphia) from "taking", through eminent domain, for road and highway
construction.
Aclose study of the Act of 1849, supra, clearly indicatcs that this enactment looked
not to the condemnor, but rather to the land to be condemned, and manifested a
strong policy in this Commonwealth against any disturbances of cemeteries or burial
grounds for road construction. It specifically excmpted and immunized such lands
from condemnation for such purposcs. ... All such lands wcre protectcd from the
cxcrcise of the power, regardless of the condemning body involvcd. Moreovcr, this
policy has not bcen changcd onc iota by thc legislature sincc it was first promulgated
116 ycars ago. n2
. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. -Footnote- .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..
n2 In recent years, in Icgislation govcrning the opcning of roads by townships of
the first and sccond class. thc Icgislature has cvidcnccd an intcntion of continuing this
policy. Scc. Acts of May 27, 1949, P. L. 1955, @ 43, 53 P.S. @ 57006, and Junc
I, 1956, P. L. (1955) 2021, @ 13.53 P.S. 66101.
. . . . . . . . . . . . . . . - - .End Footnote. . . - . - . . . . . . . . . . - .
...
Furthcr, thc right of cmincnt domain is cxclusivcly in thc sovcreign. While thc
right to excrcisc the power may bc dclcgatcd. thc body to which the power is
entrustcd has no authority beyond thatlcgislatively grantcd. Sec. 13 P.L.E..
"Emincnt Domain. " @ 4 and authoritics citcd thcrein.
It is without qucstion that the land sought to bc taken is cemetcry land. Although the Plan
of thc propcrty condcmncd (Exhibit "a") of thc Dcclaration of Tuking. does not cxplicitly
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designate the land as a cemetery. it does reference the land as being described in Deed Book "V",
Volume 14, Page 390, in the public records of the Reeorder of Deeds of Cumberland County.
That deed in turn states that the conveyance is made under and subject to the Indenture of Trust.
also recorded in the public records as aforesaid which further includes the plan of Ashland
Cemetery. showing the entire tract to be laid out for a cemetery. Whether bodies are actuuily
interred on the strip of ground to be taken. a question of fact which could only be resolved through
an evidentiary hearing, is irrelevant. Where the plans "clearly earmark the lands involved as
present cemetery land," the land is protected by the statute, whether bodies are presently interred
there or not. Interstate. 422 Pa. at 599. 222 A.2d at
It is further clear that the taking of the cemetery land by the Borough is for the opening of a
street. The Borough admits in paragraph 4 of its Declaration of Thking that the cemetery land
sought to be condemned is "required additional right-of-way along York Road (S.R. 0074) in
connection with an approved street intersecting with said York Road." The "approved street"
does not presently exist and would be opened in the future in connection with this condemnation.
Since the taking of cemetery land is for the purpose of acquiring additional right of way necessary
for the opening of a new road, the taking is expressly prohibited by 9 P.S. ~ 8.
2. Whether Preliminary Objections raise questions of fact which may
need to be resolved before a determination on the Issues raised
may be made.
Suggested Answer: A hearing on factual Issues should be held If
questions of fact exist.
The procedure for preliminary objections to an eminent domain taking provides for fact
finding to resolve issues of fact if deemed necessary by the Court. In relevant part, 26 P.S. ~ 1-
406(e) states, "If an issue of fact is raised, the court shall take evidence by depositions or
otherwise."
It is suggested that based on the reasoning outlined above, no evidentiary hearing is
required for the Court to enter an Order against the Borough, finding the taking to be without
authority, and ordering that title be revested in the Condemnees. To make such a ruling, the Court
may rely on mailers of public record indicllling the existence and location of AS:lland Cemetery and
the admission in the Borough's Notice of Taking that the taking of the cemetery land is for the
opening of a street. Based on these two facts, the Court may then conclude that the Borough lacks
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authority to take the cemctcry land for rcason of the prohibition contained in 9 P.S. * 8 and
thereby uphold the time-honored poliey of the Commonwealth as expounded in [nterstate.
To find against the Condemnees, however, the Court must conclude either that the land
owned by the Condemnees is not a cemetery or that the Borough is not opening a street. Eitherof
these findings necessarily involve a finding of fuct which cunnot be made without the taking of
evidence. Thcrefore, before resolving the issues in this maller, the Court must hold an evidentiary
hearing. Otherwise, a property owner is provided no legal recourse. See. Appeal of Conway. 60
Pa. Commonweallh Ct. 520, 523, 432 A.2d 276,278 (1981): ''[[If, as here, no testimony is
allowed, a condemnee, whose exclusive means of challenging the power to condemn is by filing
preliminary objections to the declaration of taking, has no opportunity to show that the action of
the condemnor was arbitrary."
3. Whether the Dec[aratlon of Tak[ng falls to conform with the
Em[nent Domain Code, 26 P.S. * 1-402(b)(5) and should be
amended.
Suggested Answer: The Borough should be ordered to file a more
specific Declaration of Taking so that It complies with the
requirements of the Eminent Domain Code.
The Eminent Domain Code requires that a condemning government body set forth certain
specific information in its Declaration of Taking. Among the information to be provided in the
Declaration of Taking is a stutement of the city, township or borough in which the taken property
is located.
It is not suggested that the Condemnees are without knowledge of the location of the
property or in which municipality the property is located. Nor is it suggested that the failure to
state the municipality is a fatal defect necessitating the revesting of title in the Condemnees as a
mailer of law. It is suggested, however, that the provisions of the Eminellt Domain are mandatory
rather than mercly advisory. And it is further suggested that it is within the power and discretion of
the Court to grant leave for the filing of an amended Declaration of Taking to the same term and
number without instituting new court action. [n re Powell. 14 D. & C.3d 38 (1980). After the
filing, an amended Notice of Taking would be served and leave should granted for any further
preliminary objections and further proceedings held Oil the within Objections. Should the
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Borough fail to file an IImended Notice of Thking within the time frume grunted. then IIn Order
should be granted vesting title in the Condemnees.
To hold otherwise would ignore the express statutory requirements.
CONCLUSION
The Borough IlIcks the power to tuke by cmincnt domllin the propcrty of the Condcmnees.
A borough may not opcn a street through a cemctery. Thc taking of lllnd is a portion of Ashland
Cemetery, a cemctery in continuous use for wcll over 100 yel\rs. The stated purpose for the tnking
is to opcn an intcrsection for a new street. As such, the Borough is c1eurly opcning the new street
through the cemetery. For this reason, an Ordcr should be cntered revesting title in the
Condemnces. If in reviewing this mattcr, the Court dctermines issues of fact have bcen raiscd, the
appropriate means to resolve the issucs is through evidentiary hearings.
Finally, the Decluration of l\1king fails to state the municipality in which the property is
located. The Court should grant Icave to the Borough to file an amcnded dec1uration of tnking and
if no such decluration is filed within the time frame ordcred, to entcr an order revesting title in the
Condemnees.
Rcspectfully submitted,
Frey & Tiley,
Attomeys for William M. Ewing and
Seymour A. Ewing, property owners and
Condemnees
By:
f'~-J
Robert G. Frey, Esquire (
Supreme Court Number 46397
5 South Hanover Street
Curlisle. Pennsylvania 17013
(717) 243-5838
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IN RE: Condemnation Proceeding by
Borough of Carlisle for the
Condemnation of Properly of
William M. Ewing and
Seymour A. Ewing
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 95-436 Civil Term
AND NOW comes the Condemnor, The Borough of Carlisle ("Borough") by Its
attorneys, Mette, Evans & Woodside, and respectfully submits the following In
opposition to Condemnees' Preliminary Objections.
1. FACTUAL BAC1WHOUND
The facts relevant to disposition of the Condemnees' Preliminary Objections are
all of record and relate as follows:
The Borough of Carlisle, duly authorized under the Municipalities Planning Code
53 P.S. 946501 m ~ filed a Declaration of Taking on January 27, 1995 and the Notice
.
was served upon the Condemnees on February 2, 1995. The Declaration serves to
take a small portion of land owned by William M. and Seymour A. EWino ("Ewings") who
operate the property known as Ashland Cemetery. The total area of land taken Is
1,818.737 sq. ft. (0.04175 acres) In the shape of a narrow triangle running along the
eXisting right-of-way of York Road (SR 0074). This taking is limited to only that property
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A. The Borough has the authority to condemn property and Its exercise of that
authority In this matter Is appropriate.
The Condemnees concede that the Borough may properly exercise its power of
eminent domain in appropriate circumstances. They allege, however, that the
Borough's taking of a narrow sliver of property at the AShland Cemetery site to widen
the existing right-of-way for York Road is prohibited under the Act of April 5, 1849, P.L.
39791, 9 P.S. 98 which reads as follows:
It shall not be lawful to open any street, lane, alley or public
road through any burial ground or cemetery within this
Commonwealth, any laws heretofore passed to the contrary
notwithstanding: provided, that this section shall not extend
to the City and County of Philadelphia.
Condemnees cite one case in support of their proposition. Interstate Cemetery
Company Appeal, 422 Pa. 594, 222 A2d 906 (1966).
Condemnees' reliance upon that case Is misplaced. First, the Interstate court
made no doubt of lis Intent when It ended its majority opinion with the following
sentence: "This decision Is limited to the facts of this case." Interstate, 422 Pa. at 599.
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The facts of the Interstate case are Indeed limited. The court was reviewing a
lower court determination that the 1849 statute could not have included within Its
prohibition the Commonwealth of Pennsylvania because the Commonwealth,
condemnor In the Interstate matter, was not building roads in 1849.
The court reasoned that all eminent domain authority evolves from the sovereign
and that the Commonwealth had no doubt been exercising eminent domain powers
prior to 1849. Accordingly, under the limited circumstances of that case, the
Pennsylvania Supreme Court held that the 1849 prohibition did prevent the taking.
The condemnation of the Ewings' property is distinguishable from the situation In
Interstate and, In fact, compares favorably with the reasoning of the Berks County Court
In Good Shepard Cemetery Company v. Commonwealth, 75 D.&C.2d 203 (Berks 1976).
In that case, the Commonwealth proposed to condemn property for straightening
and widening an existing road as It intersects with a Pennsylvania route. Good Shepard
at 204. The land to be taken was utilized as parking spaces at the cemetery and
admittedly could no longer be used for parking if the condemnation were allowed to
proceed. The condemnees In Good Shepard likewise invoked the protection of the
1849 statute and the authority of Interstate Cemetery Company, supra.
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The Berks County Court was not convinced that the Act of 1849 had application
because, in the Court's view, the language of the Act is clear and unequivocal and
relates specifically to the opening of streets, lanes, alleys or public roads. "A widening
and straightening of a road Is not an opening of a road within the meaning of the Act..
Good Shepard at 205.
While the facts In Interstate and Good Shepard are not clear as to this point, It is
worthwhile to note that the widening of the York Road will not result in the passage of a
road through the cemetery (the precise language of the statute).
The Borough of Carlisle has taken only that land necessary to widen the York
Road right-of.way, which already borders the cemetery, ~ in connection with an
approved street intersecting with York Road.
The Ewing's attempt to link the widening of York Road to the 1849 statute by
citing the establishment of a new road which will intersect with York Road has no merit.
As long as the Borough Is widening the right-of-way of the existing road, the taking is
not prohibited because It does not W ~ open a road within the meaning of the Act. In
fact, as the Ewings concede In the fourth page of their Brief, the Widening Is to occur In
connection with an approved street, not to establish the street Itself.
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c.
B.
Hearings or depositions to establish facts at Issue are not necessary In the
Instant case.
.....
The facts of record are that the Borough has condemned a narrow sliver of land
In order to widen the existing right-of-way of York Road.
No additional facts are necessary to analyze this case under the Interstate and
Good Shepard cases presented by the parties. Contrary to Condemnees' argument this
take is not to open a street through a cemetery, It clearly widens existing right-of-way,
and then only minimally.
If, however, the Court should detenmine that there are facts that It wishes
established on the record, the parties could do so either by stipulation or discovery. The
Borough requests that the Court set a reasonably short deadline to assure that these
Issues of fact can be properly established on the record without undue delay in further
consideration of the Preliminary Objections.
C. The declaration of taking sufficiently conforms with the Eminent Domain
Code.
Condemnees' assertion that the requirements of ~402(b)(5) of the Eminent
Domain Code Is not met by the declaration Is misplaced.
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While It is true that the description at Exhibit "A" of the Declaration does not state
W ~ that the land Is within the Borough it describes the land with particularity as a
portion of the land known as Ashland Cemetery conveyed to William Ewing, et al.
(Condemnees) by Deed at DB 14V p. 390 In the Cumberland County Recorders Office.
'Section 402(5) In describing the requirements necessary for
Inclusion In the declaration of taking requires only a
description of the property condemned sufficient for
Identification thereof." Milford Traumbauersville Area Sewer
Authority v. Approximately O. 753 Acres of Land, 25 Pa.
Comm. 13, 358 A.2d 450, 454 (1976).
If the Court Is convinced that the omission of the Borough's name on the Identity
of the property warrants amendment, the Court may order the amendment and state in
the order that further dilatory proceedings are not necessary.
Condemnees' suggestion that the so ordered amendment of the Notice of Taking
opens the door for entirely new Preliminary Objections Is not supported In the Eminent
Domain Code or In In Re Powell, 14 D.&C.3d 38 (1980), the case cited In their brief. To
the contrary, the Powell court emphasized In quoting 26 P.S. 91-406(e): .... The court
may allow amendment or direct the filing of a more specific declaration of taking"
(emphasis supplied In original). In Re Powall at 40.
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V. CONCLUSION
For the reasons above stated, the Condemnor respectfully prays that this Court
will confirm that Its taking of the property Is appropriate dismissing Condemnees'
Preliminary Objections, thereby maintaining title In the Borough.
Respectfully submitted,
METTE, EVANS & WOODSIDE
B~~
DAVID A. FITZSIMONS, ESQUIRE
Supreme Court I.D. #41722
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
Attorneys for Condemnor
The Borough of Carlisle
DATED: 04/13/95
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CERTIFICATE OF SERVICE
I, DAVID A, FITZSIMONS, ESQUIRE, hereby certify that on the .rub... day of
APRIL, 1995, I served a copy of the foregoing document upon the person(s) and In the
manner Indicated below, which service satisfies the requirements of the Pennsylvania
Rules of Civil Procedure, by depositing a copy of same In the U.S. mall, First-class
postage prepaid, as follows:
Robert G, Frey, Esquire
FREY & TILEY
5 South Hanover Street
Carlisle, PA 17013
METTE, EVANS & WOODSIDE
B~~
DAVID A. FITZSIMONS, ESQUIRE
Supreme Court I.D. #41722
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
-
Attorneys for Condemnor
The Borough of Carlisle
29919-1
((;2-
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
IN RE: CONDEMNATION PROCEEDING
BY BOROUGH OF CARLISLE FOR THE
CONDEMNATION OF PROPERTY OF
WILLIAM M. EWING and SEYMOUR A.
EWING
.
THE BOROUGH OF CARLISLE,
Appellant
No. 2395 C.D. 1995
NOTICE OF DISCONTINUANCE
This is to notify you that the above-captioned matter has been withdrawn
discontinued and ended.
DATE: January 4, 1996
TRIAL COURT NO: 95-436CIVIL
e~ 4~S-'~~
DEPUTY PROTHONOTARY/CHIEF CLERK
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"
~~ '- =-.:l..!. CERTIFIED FROM THE RECORD
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" l. 0"\ ::";(:! JAN 18 1996
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fe. w:: ':1,,]
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V c. U )cputy Prothonulary . Chid Clerk