HomeMy WebLinkAbout02-42731N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
CONDEMNATION BY WEST PENNSBORO
TOWNSHIP OF CERTAIN LANDS IN THE
TOWNSHIP OF WEST PENNSBORO,
CUMBERLAND COUNTY, PENNSYLVANIA
EMINENT DOMAIN - IN REM
DECLARATION OF TAKING
The Township of West Pennsboro, Cumberland County, Pennsylvania, does hereby
respectfully declare that:
1. The Condemnor is the Township of West Peunsboro, with offices located at 2150
Newville Road, Carlisle, Cumberland County, Pennsylvania.
2. The interest in and to the properties described in Exhibit "A" attached hereto and
made a part hereof, owned by the American Physiological Society, a Missouri corporation with a
corporate address of 9650 Rockville Pike, Bethesda, Maryland 20814, is hereby condemned in
fee simple as provided herein, by the Condemnor for park and recreational purposes, pursuant to
53 P.S. Sections 1081 and 67201, as amended, as authorized by a resolution adopted August 15,
2002, by said Condemnor. A copy of said resolution is attached hereto and made a part hereof as
Exhibit "B". The original thereof may be examined at the office of the Township, 2150
Newville Road, Carlisle, Cumberland County, Pennsylvania.
3. Bethany Evangelical Church of the Church of the United Brethren in Christ of 45
Vine Drive, Carlisle, Cumberland County, Pennsylvania has an interest in the subject property by
virtue of a certain Memorandum of Agreement of Sale between American Physiological Society
and Bethany Evangelical Church of the Church of the United Brethren in Christ as recorded in
Cumberland County Miscellaneous Book (o~q , Page I[q/~
4. The purpose of the condemnation is to own, construct, maintain and operate park
and recreational facilities for use by the residents of the Township of West Pennsboro,
Cumberland County, Pennsylvania.
5. A description of the property condemned sufficient for its identification is set
forth in Exhibit "A" attached hereto and made a part hereof.
The nature of the title acquired in and to said property listed in Exhibit "A" is fee
simple.
7.
A plan showing the condemned property may be inspected at the West Pennsboro
Township office, 2150 Newville Road, Carlisle, Cumberland County, Pennsylvania.
8. The just compensation for the taking, when determined, shall be paid out of the
general funds of the Township of West Pennsboro and secured by its statutory power of taxation
and no other security is required in accordance with Section 403(b) of the Eminent Domain
Code, 53 P.S. 1-403(b).
Dated:
Attomey ID No. 16269
Salzmann, DePaulis & Fishman, P.C.
95 Alexander Spring Road, Suite 3
Carlisle, PA 17013
(717) 249-6333
Attorney for West Pennsboro
Township, Condemnor
COMMONWEALTH OF PENNSYLVANIA :
: SS
COUNTY OF CUMBERLAND :
Gerald Barrick, being duly sworn according to the law, deposes and says that he is
Chairman of the Board of Supervisors of West Pennsboro Township, Cumberland County,
Pennsylvania and makes this Affidavit in its behalf, being familiar with the facts and having
authority so to do; and that all of the statements in the foregoing Declaration of Taking are true
and correct to the best information, knowledge and belief.
Gerald Barrick, L'lhairman
West Pennsboro Township Board
Of Supervisors
Sworn to and subsc~ed
beforetime, t~is b (]ay
of c'~F"72002.
My Commission Expires:
MyNOTARIAL S ~ ~t I I ' ]
STEVEN J. FISHMAN, Nome/~h~hllc ~
Ctutse Boro Cumberland County
Commission F--xpires Sept 1, 2003,;~ ,[
ALL that certain tract of land situate in West Pennsboro Township, Cumberland County, Pennsylvania,
bounded and described as follows:
TRACT NO. 1: BEGINNING at a post at intersection of lands, now or formerly of O. T. Gleim and lands, now
or formerly of William A. Hurley; thence along land of the said Gleim, North 83 degrees 00 minutes West, 623.9
feet to a walnut tree; thence along land, now or formerly of Allen Shatto, South 59 degrees 00 minutes West 463.4
feet to a post; thence along land of the said Shatto, South 07 degrees 00 minutes West, 121.3 feet to a post; thence
along land of the said Jacob S. Bear and Jessie L. Bear, his wife, South 83 degrees 00 minutes East 959.2 feet to a
post; thence along lands of the said William A. Hurley, North 12 degrees 00 minutes East 404.4 feet to a post, the
place of BEG INN lNG.
CONTAINING 7.854 acres.
TRACT NO. 2: BEGINNING at a point at the intersection of the State Road and a public road; thence along said
public road, North 4 'A degrees East 25.2 perches to an iron pin in said public road; thence by lands, now or
formerly of John O. Brady, South 89 ~A degrees West 82.9 perches to a stone; thence North 3A degrees West 7.3
perches to a point; thence by lands, now or formerly of Bricker, North 50 ~A degrees West 25.2 perches to a stone;
thence by land, now or formerly of Samuel Abraims, South 33 degrees West 58.6 perches to a point in the center
of State Road; thence along said State Road, North 89 ~A degrees East 132.3 perches to a point, the place of
BEGINNING.
CONTAINING 22 acres and 95 perches.
EXCEPTING AND RESERVING therefrom, to -wit, Tract No. 2 above, the following smaller tracts of land:
(a)
(b)
Tract of land containing four (4) acres and thirty-six (36) perches, which George W. Bear and Alice S.
Bear, his wife, by their Deed dated April 2, 1900, and recorded in said Office of the Recorder of Deeds, in
Deed Book "C", Volume 6, Page 131, conveyed to Albert M. Finkenbinder.
Tract of land containing five and ninety-seven one-hundredths (5.97) acres, which George W. Bear and
Alice S. Bear, his wife, by Deed dated April 3, 1911, and recorded in said Office of the Recorder of
Deeds, in Deed Book "S", Volume 7, Page 159, granted and conveyed unto Amanda L. Keefer.
Leaving therein 12 acres and 64 perches, more or less.
BEING the same premises which Charles J. Rife, single man, by his Deed dated June 28, 2002 and recorded July
3, 2002 in the Office of the Recorder of Deeds in Deed Book 252, Page 2508, granted and conveyed unto The
American Physiological Society.
AND BEING the subject of a certain Memorandum of Agreement of Sale between American Physiological
Society as Seller and Bethany Evangelical Church of the Church of the United Brethren in Christ as Purchaser,
recorded in Cumberland County Miscellaneous Book ¢t5°~ , Page 1 ~ q[9.
EXHIBIT "A"
RESOLUTION 2002-
A RESOLUTION by the Board of Supervisors of West Pennsboro Township,
Cumberland County, Pennsylvania authorizing the taking by condemnation for park and
recreational purposes of a certain tract of land, in West Pennsboro Township, Cumberland
County, Pennsylvania.
WHEREAS West Pennsboro Township desires to acquire a certain tract of land situated at the
northwestern intersection of Pa 641 and McAllister Church Road for park and recreational purposes,
which property is currently owned in fee simple by the American Physiological Society, and
WHEREAS the Township has been unable to reach agreement with the owner of the subject tract
to purchase the subject tract by amicable means, and
WHEREAS Sections 2201 and 3401 of the Second Class Township Code ( 53 P.S. Sections
67201 and 68401) authorize Townships of the Second Class to acquire land for park and recreational
purposes in accordance with the provisions of the Eminent Domain Code of Pennsylvania (26 P.S. 1-101
et. seq.,
NOW THEREFORE, it is hereby resolved by the Board of Supervisors of West Pennsboro
Township, Cumberland County, Pennsylvania, that the Township select and acquire by the right of
eminent domain:
ALL THAT CERTAiN tract of land together with improvements thereon situate at the
northwestern intersection of the Newville Road (PA 641) and McAllister Church Road, being part of
Tax Parcel Number 46-07-0475-039, and currently owned by the American Physiological Society by
virtue ora certain Deed from Charles J. Rife, dated .15,.,,-e i.K 2002 recorded in Cumberland County
Deed Book~/Page?-.,n~A complete metes and bounds description is attached hereto and incorporated
herein by reference thereto as Exhibit A.
FURTHER, the Chairman of the Board of Supervisors is hereby authorized to file with the Court
of Common Pleas of Cumberland County a Declaration of Taking in fee simple of the above-mentioned
tract of land, and to take any further action that may be necessary or desirable to carry out the intent and
purposes of this Resolution.
AND FURTHER, the amount of damages, when determined, shall be paid out of the general
funds of West Pennsboro Township.
RESOLVED this 15th day of August, 2002 by the Board of Supervisors of West
Pennsboro Township.
Attest:
Board of Supervisors of West Pennsboro Township
2-j'~ ~ ~ d,9 _
· Cl:ihirman
CONDEMNATION BY WEST PENNSBORO : 1N THE COURT OF COMMON PLEAS OF
TOWNSHIP, OF CERTAIN LANDS IN THE : CUMBERLAND COUNTY, PENNSYLVANIA
TOWNSHIP OF WEST PENNSBORO : NO. O~-~."/3
CUMBERLAND COUNTY, PENNSYLVANIA: CIVIL ACTION LAW
: EMINENT DOMAIN - IN REM
MEMORANDUM OF FILING OF NOTICE
To the Prothonotary:
Notice of the above-captioned condemnation is recorded in the Recorder of Deeds of
Cumberland County in Deed Book No. 690, Page No. 207.
Steven J. Fishman, Esquire
Attomey ID No. 16269
Salzmann, DePaulis & Fishman, P.C.
95 Alexander Spring Road, Suite 3
Carlisle, PA 17013
(717) 249-6333
Attorney for Condemnor
CONDEMNATION BY WEST PENNSBORO
TOWNSHIP, OF CERTAIN LANDS IN THE
TOWNSHIP OF WEST PENNSBORO,
CUMBERLAND COUNTY, PENNSYLVANIA
: IN THE COURT COMMON PLEAS
: CUMBERLAND COUNTY,
: PENNSYLVANIA
: NO. 02-4273
: CML ACTION LAW
: EMINENT DOMAIN - IN REM
PRELIMINARY OBJECTIONS BY CONDEMNEE
TO DECLARATION OF TAKING
The preliminary objections of Bethany Evangelical Church of the Church of the United
Brethren in Christ and the Mid-Atlantic Conference of the Church of the United Brethren in
Christ ("Condemnee"), joint owners of said lands which are the subject of the declaration of
taking filed by West Pennsboro Township ("Condemnor") pursuant to Section 404 of the
Eminent Domain Code, 26 Pa. Stat. Ann. § 1-404, by and through its attorneys Irwin, McKnight
& Hughes, are set forth below pursuant to Section 406 of the Eminent Domain Code, 26 Pa. Stat.
Ann. § 1-406:
1.
Condemnee Bethany Evangelical Church of the Church of the United Brethren in Christ
is a religious institution and Pennsylvania nonprofit corporation with its registered address
located at 45 Vine Drive, Carlisle, Cumberland County, Pennsylvania, as is currently joint owner
of approximately nineteen and one-half (19.5) acres within West Pennsboro Township which is
more particularly described on Exhibit "A" of Condemnor's declaration of taking ("Property").
By virtue of a Memorandum of Agreement of Sale between American Physiological
Society and Condemnee on or about the 7th day of August, 2002, Condemnee acquired an
equitable interest in the Property of more or less 19.5 acres situate in West Pennsboro Township
which Memorandum was recorded in the Office of the Recorder of Deeds in and for Cumberland
County in Miscellaneous Book 689, Page 1198.
On or about the 6th day of September, 2002, the Condemnor, West Pennsboro Township,
a township of the second class, filed of record a Declaration of Taking thereby filing notice that
the Property was to be condemned for recreational purposes.
On or about September 9, 2002, Condemnee, together with the Mid-Atlantic Conference
of the Church of the United Brethren in Christ, a religious institution established for the purpose
for overseeing churches of the United Brethren in Christ in the Mid Atlantic region, became the
record and fee simple owner of the Property.
5.
Condemnee acquired the Property for the purpose of erecting a religious place of worship
and conducting religious services thereon on approximately twelve (12) acres of the Property.
o
The declaration of taking of a portion of Condemnee's Property of consisting of
approximately twelve (12) acres should be denied for the following masons:
(a) The Condemnor is not granted to power or right to take a portion of the
Condemnee's property which is going to be used as a place of worship under any
provision of the Pennsylvania Second Class Township Code or Eminent Domain Code.
(b) The declaration of taking of a portion of Condemnee's property is in violation of
the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000 (2002).
(c) The declaration of taking of a portion of Condemnee's property is in violation of
the right to freedom of religion, U.S. Const. amend. I and XIV; and Pa. Const. art. I § 3.
(d) The declaration of taking of a portion of Condemnee's property is in violation of
the right to speak and assemble, U.S. Const. amend. I and XIV; and Pa. Const. art. I § 7.
(e) The declaration of taking of a portion of Condemnee's property is in violation of
the rights of due process and equal protection of the laws, U.S. Const. amend. XIV.
(f) The declaration of taking of a portion of Condemnee's property is excessive,
unreasonable and not necessary for the public benefit.
(g) The Condemnor's actions in regard to this matter have been arbitrary and
capricious.
°
For the foregoing reasons, the declaration of taking of approximately twelve (12) acres of
Condenmee's property is void and of no effect whatsoever. As a result, title to property should
be deemed to vest in Condemnee to the same extent as if no declaration of taking had been filed.
WHEREFORE, Bethany Evangelical Church of the United Brethren in Christ and the
Mid-Atlantic Conference of the Church of the United Brethren in Christ requests this Honorable
Court to enter an order dismissing the declaration of taking with respect to approximately twelve
(12) acres of Condemnee's property thereby decreeing the same to be void and of no effect
whatsoever, and further decreeing that title of the property shall vest in Condemnee to the same
extent as if no declaration of taking had been filed.
Date: October 16, 2002
Respectfully submitted,
IRWIN, 1 ~GHES
~, iughes, Esq.
Suprem~/ourt I.D. No. 58884
DougJa's G. Miller, Esq.
Su~r6me Court I.D. No. 83776
-'--'~0 West Pomfi'et Street
Carlisle, Pennsylvania 17013
(717) 249-2353
Attorneys for Condemnee,
Bethany Evangelical Church of the
United Brethren in Christ and the
Mid-Atlantic Conference of the
Church of the United Brethren in
Christ
4
CERTIFICATE OF SERVICE
I, James D. Hughes, Esquire, do hereby certify that I have served a tree and correct copy
of the foregoing document upon the persons indicated below by first class United States mail,
postage paid in Carlisle, Pennsylvania 17013, on the date set forth below:
West Pennsboro Township
2150 Newville Road
Carlisle, PA 17013
Steven J. Fishman, Esq.
Salzmann, DePaulis & Fishman, P.C.
95 Alexander Spring Road, Suite 3
Carlisle, PA 17013
Date: October/~002
UGHES
Jtmrgs D/,/Hughes, Esq.
Supre/o(e Court I.D. No. 58884
Do. las G. Miller, Esq.
2S~ipreme Court I.D. No. 83776
60 West Pomfret Street
Carlisle, Pennsylvania 17013
(717) 249-2353
Attorney for Condemnee,
Bethany Evangelical Church of the
United Brethren in Christ and the
Mid-Atlantic Conference of the
Church of the United Brethren in
Christ
CONDEMNATION BY WEST PENNSBORO : IN THE COURT OF COMMON PLEAS
TOWNSHIP, OF CERTAIN LANDS IN THE : CUMBERLAND COUNTY,
TOWNSHIP OF WEST PENNSBORO : PENNSYLVANIA
CUMBERLAND COUNTY, PENNSYLVANIA: NO. 02-4273
: CIVIL ACTION - LAW
: EMINENT DOMAIN - IN REM
MOTION TO DISMISS PRELIMINARY OBJECTIONS OF BETHANY
EVANGELICAL CHURCH OF THE UNITED BRETHREN IN CHRIST AND
THE MID-ATLANTIC CONFERENCE OF THE CHURCH OF THE UNITED
BRETHREN IN CHRIST TO TOWNSHIP OF WEST PENNSBORO'S
DECLARATION OF TAKING,
AND NOW, comes thc Condemnor, West Pennsboro Township by and through its
counsel, Steven J. Fishman, Esq. and Salzmann, DePaulis and Fishman, P.C., and files
this Response to and Motion to Dismiss Preliminary Objections to the Declaration of
Taking:
1. Paragraph One of the Preliminary Objections is admitted in part and denied in
part. It is admitted that Bethany Evangelical Church (hereinafter "Bethany" ) is a
religious institution and a Pennsylvania nonprofit corporation. As to Bethany's alleged
joint ownership interest, after reasonable investigation, the condemnor, West Pennsboro
Township (hereinafter, "Township") is without information or knowledge sufficient to
form a belief as to the truth of the averment and strict proof is demanded. It is further
denied that Bethany may assert its position as an alleged joint owner or condemnee of the
land (hereinafter "Property") subject to the declaration of taking filed on behalf of the
Township.
2. Paragraph Two of the Preliminary Objections is denied. By way of further answer,
after reasonable investigation, the Township is without information or knowledge
sufficient to form a belief as to the truth of the averment and strict proof is demanded.
Furthermore, Bethany is estopped from asserting that it acquired an equitable interest in
the property and is a condemnee in this action. The Township, acting through its counsel,
was engaged in negotiations with Bethany and the landowner, American Physiological
Society (hereafter "APS"), to acquire the property from the landowner in lieu of
condemnation with Bethany to be able to purchase a portion of the tract. The parties
agreed that no party would change its status during the negotiations. By entering into the
alleged Memorandum of Agreement, Bethany and APS breached their agreement with
the Township and is prohibited from asserting its alleged equitable interest in this
condemnation action.
3. Paragraph Three of the Preliminary Objections is admitted.
4. To the extent that Paragraph Four of the Preliminary Objections is a conclusion of
law no response is required. By way of further answer paragraph Four is denied. After
reasonable investigation, the condemnor is without information or knowledge sufficient
to form a belief as to the truth of the averment and strict proof is demanded. Furthermore,
Township's averments in Paragraph Two are incorporated by reference herein and
Bethany is estopped from asserting its position as an alleged condemnee in this
condemnation action.
5. Paragraph Five of the Preliminary Objections is denied. After reasonable
investigation, the condemnor is without information or knowledge sufficient to form a
belief as to the truth of the averment and strict proof is demanded.
6. Paragraph Six of the Preliminary Objections is a conclusion of law to which no
response is required. To the extent that a response is required, the paragraph is denied
and Paragraph Two of Township's response herein is incorporated by reference hereto.
By way of further response the Township avers as follows:
As to subparagraph 6(a) of the Preliminary Objections,
a. Condemnor's authority to exercise the power of eminent domain is
expressly granted in the Second Class Township Code, 53 P.S. Section
67201. See also, Pennsylvanian Constitution, Art. 1 Section 10:
As to subparagraph 6(b) of the Preliminary Objections,
b. The Religious Land Use and Institutionalized Persons Act does not
apply to a municipality's exercise of eminent domain, insofar the Act
applies only to land use regulation and Section 8(5) of the Act expressly
defines "land use regulation" as a "zoning or landmarking law, or the
application of such a law". 42 U.S.C. Section 2000cc-8.
As to subparagraph 6(c) of the Preliminary Objections,
c. Bethany has failed to plead that the Township's exercise of eminent
domain treated Bethany in a manner differently from a similarly situated
party with a different religious affiliation and therefore disparate treatment
to support an inference of religious discrimination is neither pleaded nor
can be shown. The Township has not violated the Free Exercise Clause in
any manner.
As to subparagraph 6(d) of the Preliminary Objections,
d. The Township's actions insofar as they effect Bethany's alleged
ownership interest, are not violative of the Free Speech clause or the
Right to Assemble. To the extent Bethany is pleading a hybrid violation,
the allegations fail to plead and prove a Free Exercise violation.
Furthermore, the act of owing land or constructing a house of worship
thereon fails to implicate the Free Speech Clause.
As to subparagraph 6(e) of the Preliminary Objections,
e. The Township's actions insofar as they effect Bethany's alleged
ownership interest, are not violative of the right to due process and equal
protection. Furthermore, Bethany has failed to plead and cannot prove
deprivation of a constitutionally protected liberty or property interest, or
disparate treatment to support an inference of religious discrimination.
As to subparagraph 6(f) of the Preliminary Objections,
f. The Township's exercise of the power of eminent domain is expressly
for the public benefit, the creation of a public park, and is neither
excessive nor unreasonable.
As to subparagraph 6(g) of the Preliminary Objections,
g. The Township's exercise of the power of eminent domain for the
public benefit is neither arbitrary nor capricious.
7. Paragraph Seven of the Preliminary Objections is a conclusion of law to which no
response is required.
8. A court may dismiss preliminary objections to a declaration of taking without
holding an evidentiary hearing where, as here, everything can be resolved with the
pleadings.
WHEREFORE, the Condemnor, the Township of West Pennsboro respectfully
requests this Honorable Court to enter an order dismissing the preliminary objections to
the declaration of taking.
Respectfully submitted,
SALZMANN, DEPAULIS & FISHMAN, P.C.
By:
~shman, Esquire
Attorney ID# 16269
95 Alexander Spring Road; Suite 3
Carlisle, PA 17013
(717) 249-6333
FAX: (717) 249-7334
VERIFICATION
I verify that all the statements made in the foregoing document true and correct to the best of my
knowledge, information and belief and that any false statements made are subject to the penalties of 18
Pa.C.S. Section 4904 relating to unswom falsification to authorities.
rote:
Chairman of the Board of
Supervisors Of West Pennsboro
Township
CERTIFICATE OF SERVICE
I hereby certify that on this 5th day of November, 2002, I served a true and
correct copy of the Motion to Dismiss Preliminary Objections by first class mail, postage
pre-paid to the following:
James D. Hughes, Esquire
Irwin, McKnight & Hughes
60 West Pomfret Street
Carlisle, PA 17013
Attorney for Bethany Evangelical Church of the United Brethren in Christ
Respectfully submitted,
Salzmann, DePaulis & Fishman, P.C.
By: St~an, Esquire
Attorney ID No. 16269
95 Alexander Spring Road; Suite 3
Carlisle, PA 17013
(717) 249-6333
Fax: (717) 249-7334
CONDEMNATION BY WEST PENNSBORO
TOWNSHIP, OF CERTAIN LANDS IN THE
TOWNSHIP OF WEST PENNSBORO,
CUMBERLAND COUNTY, PENNSYLVANIA
: IN THE COURT OF COMMON PLEAS
: CUlVIBERLAND COUNTY,
: PENNSYLVANIA
:
: NO. 02-4273
: CIVIL ACTION LAW
: EMINENT DOMAIN-IN REM
PRAECIPE TO DISCONTINUE
TO THE PROTHONOTARY:
Please mark the above-captioned matter settled and discontinued.
Date:
SALZMANN, HUGHES & FISHMAN PC
Stev~n i~¥ishrfi~, e;sq.
Supreme Court I.D. No. 16269
95 Alexander Spring Rd, Suite 3
Carlisle, PA 17013
(717) 249-6333
Attorney for Plaintiff,
West Pennsboro Township