HomeMy WebLinkAbout95-S-959 CivilIN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
T-WING FARMS, INC.
Plaintiff
V®
COUNTY OF ADAMS,
Defendant
IN RE:
NO. 95-S-959
OPINION PURSUANT TO PA. R.A.P. 1925
Oler, J., July 23, 1996.
In this case, Plaintiff has appealed to the Commonwealth Court
from an order of this court issued on May 29, 1996, sustaining a
preliminary objection in the nature of a demurrer filed on behalf
of Defendant and dismissing Plaintiff's complaint. Plaintiff's
contentions on appeal, as expressed in a statement of matters
complained of on appeal, are that the complaint did sufficiently
state a cause of action and that, if not, Plaintiff should have
been afforded an opportunity to amend the complaint.~
In accordance with Pennsylvania Rule of Appellate Procedure
1925(a), this opinion is written in support of the order of court
dated May 29, 1996.
PROCEDURAL HISTORY
Procedural History. On August 15, 1995, Plaintiff T-Wing
Farms, Inc., filed a petition for review with the Commonwealth
Court of Pennsylvania. Defendant, County of Adams, was named as
respondent in the petition for review. The petition alleged that
x Plaintiff's Concise Statement of Matters Complained of on
Appeal, filed July 12, 1996.
NO. 95-S-959
a de facto condemnation of Plaintiff's property had been effected
by the county as a result of decisions rendered by its court of
common pleas in two ejectment actions. The county had not been a
party to these actions, and Plaintiff's petition for review was
premised upon a theory that counties could be held responsible for
the decisions of county judges.
In response to the petition for review, on August 17, 1995,
Defendant filed an "Application for Summary Relief Pursuant to Pa.
R.A.P. 1532(b) and/or 123(a)." In the application, Defendant
challenged the jurisdiction of the Commonwealth Court to consider
the case. The Commonwealth Court, by memorandum and order dated
August 22, 1995, held that it lacked jurisdiction in the matter,
and transferred the case to the Adams County Court of Common Pleas.
On November 14, 1995, Plaintiff filed a complaint in the Court
of Common Pleas of Adams County, which essentially reiterated the
allegations contained in the petition for review. By agreement of
counsel, a preliminary objection in the nature of a demurrer which
had been filed in opposition to Plaintiff's petition for review was
deemed to be applicable to Plaintiff's complaint.2
By order of the Adams County court dated April 3, 1996, the
writer of this opinion was appointed to preside specially in the
case. Briefs were received and oral argument on Defendant's
2 N.T. 3, Oral Argument, T-Wing Farms, Inc. v. County of
Adams, No. 95-S-959 Civil (May 29, 1996) (hereinafter N.T. __).
NO. 95-S-959
preliminary objection was held on May 29, 1996. At the conclusion
of the oral argument, Defendant's preliminary objection was
sustained and Plaintiff's complaint was dismissed. The order of
court, now on appeal, read as follows:
AND NOW, this 29th day of May, 1996, upon
consideration of the Defendant's preliminary
objection to the Plaintiff's complaint in the
nature of a demurrer, and of the briefs filed
in this matter and of the oral arguments
presented, the Defendant's preliminary
objection in the nature of a demurrer is
sustained, and the Plaintiff's complaint is
dismissed.
Statement of facts. The allegations of Plaintiff's complaint
may be summarized as follows: Plaintiff, T-Wing Farms, Inc., is a
Pennsylvania corporation with its principal place of business
located at Route 15, Straban Township, Adams County, Pennsylvania.3
Plaintiff operates an egg farm in Adams County which houses
approximately 250,000 chickens.4 The chickens are maintained in
three temperature-controlled and monitored chicken houses,s A
dwelling house is located on the farm.6 This house contains
temperature monitoring equipment for the egg farm.7 Defendant,
County of Adams, is a county in the Commonwealth of Pennsylvania
Complaint, paragraph 1.
Complaint, paragraph 3.
Id.
Complaint, paragraph 4.
Id.
3
NO. 95-S-959
located in the 51st Judicial District of Pennsylvania.8
On July 10, 1995, Plaintiff filed an ejectment action and
requested injunctive relief in the Court of Common Pleas of Adams
County against a Brian Kinter.9 Kinter was a former manager of
Plaintiff's egg farm who had been living in the dwelling house
located on the farm as part of his employment contract with
Plaintiff.~° The action was initiated after Kinter refused to leave
the dwelling house upon his resignation or to allow his replacement
access to the house.~
By order of court dated July 10, 1995, the Honorable Oscar F.
Spicer, President Judge of the Court of Common Pleas of Adams
County, directed Kinter to allow Plaintiff access as needed to the
monitoring equipment contained in the dwelling house.~2 By order
dated July 19, 1995, Kinter was directed to vacate the premises as
of 9:00 a.m., August 7, 1995.~3
A second ejectment action and request for injunctive relief
was filed by Plaintiff on July 24, 1995, against, inter alios, a
Complaint, paragraph 2.
Complaint, paragraph 8.
Complaint, paragraph 4.
Complaint, paragraphs 7, 8.
Complaint, paragraph 8; Exhibit A.
Complaint, paragraph 10; Exhibit B.
4
NO. 95-S-959
Josh Ashley and a Jen Boltz.~4 Ashley and Boltz were former
employees at the egg farm who had been living at the dwelling house
with Kinter and who also refused to leave when their employment
ended.~5 By order dated August 2, 1995, President Judge Spicer
granted Plaintiff's request for a preliminary injunction with
respect to Ashley, but declined the request for a preliminary
injunction with respect to Boltz and allowed her and her two
children to remain at the dwelling house until mid-October.~6
Defendant, County of Adams, was not named as a party in
Plaintiff's case against Brian Kinter. Nor was the county named as
a party in Plaintiff's case against Josh Ashley and Jen Boltz.
Plaintiff maintained extra security at the egg farm during the
time that Kinter, Ashley, and Boltz lived in the dwelling house.~7
Various acts of vandalism occurred at the egg farm during this time
period, which caused Plaintiff monetary damages.~8
According to Plaintiff's complaint sub judice, Defendant
County caused "Plaintiff to suffer and incur damages as a result of
Complaint, paragraph 14.
Complaint, paragraph 11.
~6 Complaint, paragraph 15; Exhibit C. Plaintiff filed an
appeal from the denial of the preliminary injunction request to the
Pennsylvania Superior Court. The appeal was argued May 7, 1996.
N.T. 9.
Complaint, paragraphs 9, 12, 16.
Complaint, paragraph 16.
NO. 95-S-959
its court decisions, beginning with the July 10, 1995 Order through
its August 2, 1995 Order, by failing to order the immediate
ejectment of Kinter, and/or Ashley, and/or Boltz .... ..~9 Defendant,
according to the complaint, "is liable to Plaintiff for the loss of
revenues/profits of Plaintiff and expenses incurred by Plaintiff
... in that ... Defendant, as a result of its County Court
decisions, arbitrarily, capriciously and illegally condemned, by de
facto condemnation, Plaintiff's property, and/or a portion thereof,
by dictating to Plaintiff the individuals who would be permitted to
remain and reside at the dwelling house .... ..20
DISCUSSION
It is well settled in Pennsylvania that "[t]he test on
preliminary objections [which would result in dismissal of a cause
of action] is whether it is clear and free from doubt from all of
the facts pleaded that the pleader will be unable to prove facts
legally sufficient to establish his right to relief." Bower v.
Bower, 531 Pa. 53, 57, 611 A.2d 181, 182 (1992). In determining
whether to grant such a preliminary objection, the "Court must
consider as true all of the well-pleaded material facts set forth
in [the] complaint and all reasonable inferences that may be drawn
from these facts." Id.
Generally, pursuant to the discretionary powers of the court,
Id.
Complaint, paragraph 17.
6
NO. 95-S-959
the right to amend a complaint should be liberally granted.
Feingold v. Hill, 360 Pa. Super. 539, 549, 521 A.2d 33, 39 (1987).
However, "[w]here the initial pleading reveals that the complaint's
defects are so substantial that amendment is not likely to cure
them, and that the prima facie elements of the claim or claims
asserted will not be established, the right to amend is properly
withheld." Id. at 550, 521 A.2d at 39.
A plaintiff "alleging a de facto taking is under a 'heavy
burden' to establish that such a taking has occurred." Zettlemoyer
v. Transcontinental Gas, 540 Pa. 337, 343, 657 A.2d 920, 923
(1995). A taking occurs when an "entity clothed with the power of
eminent domain substantially deprives an owner of the use and
enjoyment of his property." Id.
The power of eminent domain "is the power to take property for
public use." Balent v. City of Wilkes-Barre, 89 Pa. Commw. 578,
580, 492 A.2d 1196, 1197 (1985), quoting White's Appeal, 287 Pa.
259, 264, 134 A. 409, 411 (1926). If a property is not
appropriated for public use, there is no compensable taking. Id.
at 582, 492 A.2d at 1198.
Furthermore, "a de facto taking must result from a
governmental body's actual exercise of the power of eminent domain;
it cannot result from the actions of the condemning entity's agents
.... " Darlington v. County of Chester, 147 Pa. Commw. 177, 188,
607 A.2d 315, 320 (1992). "[S]ubstantial deprivation must be
7
NO. 95-S-959
occasioned by the actions of the entity clothed with the power of
eminent domain, be caused as a result of the exercise of that
power, and the damages must be an immediate, necessary, and
unavoidable consequence of such exercise." Id. at 183, 607 A.2d at
318.
In the present case, where Plaintiff alleged a de facto
condemnation of its property by Adams County as a result of
judicial decisions in cases in which the county was not a party,
several factors led the court to dismiss Plaintiff's complaint for
failure to state a cause of action. First, there was no act on the
part of a governmental body clothed with the power of eminent
domain upon which to predicate such an action.
In this regard, it will be remembered that de facto takings
are not to be premised upon principles of agency.2~ Nor would an
agency relationship between the judiciary and county legislative
and executive branches be a logical supposition, given our system
of separation of powers.2~
Second, there was no appropriation of property for the benefit
of a governmental body or for public use upon which to predicate
such a cause of action. The Adams County litigation which
~ Cf. Darlington v. County of Chester, 147 Pa. Commw. 177,
607 A.2d 315 (1992).
~ Cf. Commonwealth ex rel. Jiuliante v. County of Erie, 540
Pa. 376, 657 A.2d 1245 (1995); Beckert v. Warren, 497 Pa. 137, 439
A.2d 638 (1981).
8
NO. 95-S-959
precipitated the instant case involved the rights of private
parties only.
Third, no judicial precedent appears to exist for the cause of
action advanced by Plaintiff. In this regard, as Judge Learned
Hand observed in another context, it is not desirable "for a lower
court to embrace the exhilarating opportunity of anticipating a
doc[t]rine which may be in the womb of time, but whose birth is
distant .... " Spector Motor Service v. Walsh, 139 F.2d 809, 823 (2d
Cir. 1944) (dissenting opinion), rev'd, 323 U.S. 101, 89 L. Ed.
101, 65 S. Ct. 152 (1944).
Finally, the effect upon property rights occasioned by
President Judge Spicer's rather expeditious handling of the
litigation which precipitated the present case could not, in the
court's view, be characterized as constituting a "substantial
depriv[ation]" of use and enjoyment. For all of the foregoing
reasons, it appeared to the court that Plaintiff's complaint failed
to state a claim upon which relief could be granted, and that no
amendment would suffice to correct the deficiency.23
23 Nothing in this opinion is intended to address any
potential issue regarding governmental immunity which might exist
in this case.
NO. 95-S-959
James W. Abraham, Esq.
122 Locust Street
Harrisburg, PA 17101
Attorney for Plaintiff
John R. White, Esq.
Adams County Solicitor
122 Baltimore Street
Gettysburg, PA 17325
Attorney for Defendant
: rc
10