                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


E. Brendan Carroll                             :
                                               :   No. 1580 C.D. 2013
               v.                              :
                                               :   Argued: June 16, 2014
Exeter Township, Luzerne County,               :
Pennsylvania,                                  :
                  Appellant                    :


BEFORE:        HONORABLE BERNARD L. McGINLEY, Judge
               HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                               FILED: August 4, 2014


               Exeter Township (Township) appeals from the August 26, 2013 order
of the Court of Common Pleas of Luzerne County (trial court) denying the
Township’s motion for post-trial relief from the trial court’s award of damages for
a de facto taking. We reverse.


                              Facts and Procedural History
               In 1998, the Township passed Ordinance No. 1,1 which vacated
Searfoss Road.2 In this case, the 224.102-acre property at issue (Property) was

      1
          Exeter Township, Pa., Ordinance 1 (August 3, 1998). Ordinance No. 1 read as follows:

                      WHEREAS, the Board of Supervisors of the Township of
               Exeter have been informed that a dispute or conflict has developed
               regarding ownership of a roadway within the Township of Exeter
(Footnote continued on next page…)
(continued…)

           known as Searfoss Road (a.k.a. “Castle Road”), and the property
           which abuts thereto; and
                   WHEREAS, an Ordinance was adopted by the Township
           of Exeter on April 6, 1959, declaring said Searfoss Road a public
           road with a thirty-three (33’) foot right-of-way which sets forth a
           particular description . . . and
                   WHEREAS, the Township of Exeter has formally accepted
           and opened said road, and continues to maintain same, including,
           but not limited to, the installation of curbing, paving of street and,
           in essence, maintaining said roadway in a proper condition for
           vehicles to traverse; and
                   WHEREAS, the Board of Supervisors of the Township of
           Exeter has been provided with an unauthenticated and uncertified
           road docket dated 1900, which purports, professes and alleges that
           Searfoss Road extends to the Borough of Exeter, with a right-of-
           way of fifty (50’) feet, the veracity of which the Board of
           Supervisors of Exeter Township unequivocally denies; and
                   WHEREAS, the Board of Supervisors of the Township of
           Exeter acknowledges that the purported property which abuts the
           roadway known as Searfoss Road has not been opened to, nor used
           by, the public for a period substantially in excess of twenty-one
           (21) years; and
                   WHEREAS, the Board of Supervisors of the Township of
           Exeter is desirous of resolving this dispute for its citizenry and
           particularly, the owners of property which front and/or abut all
           sides of Searfoss Road . . . .
                   NOW, THEREFORE, BE IT ENACTED AND
           ORDAINED, by the Board of Supervisors of the Township of
           Exeter, County of Luzerne and Commonwealth of Pennsylvania,
           and IT IS HEREBY ENACTED AND ORDAINED, by the
           authority of same, as follows:
                   1.      That from and after the date hereof, any and all
           property that fronts and/or abuts the public road known as Searfoss
           Road (a.k.a. “Castle Road”) . . . or any and all property which is
           purported, professed and/or alleged to be public pursuant to a
           certain unauthenticated and uncertified road docket dated 1900, be,
           and the same is, hereby vacated as a public road, street, alley or
           thoroughfare.
(Footnote continued on next page…)
                                             2
previously owned by Helen Ola Durdon O’Leary and Esther Durdon (together, the
Durdons). E. Brendan Carroll (Carroll) purchased the Property for $134,400.00 in
20003 and obtained a written assignment (Assignment) of all of the rights to any
claims arising from the Durdons’ previous ownership of the Property. 4 In light of
this Assignment, in 2001 Carroll petitioned for appointment of a board of viewers,
alleging that a de facto taking occurred in 1998 as a result of Ordinance No. 1. The


(continued…)

                         2.      Notice of said vacating given in accordance with
                  the provisions of the Second Class Township Code[, Act of May 1,
                  1933, P.L. 103, as amended, 53 P.S. §§65101–68701,] and the Act
                  of Assembly, in such cases made and provided.

(Reproduced Record (R.R.) at 147a-48a.)

       2
         It is unclear from the record whether Searfoss Road abuts the Property or ends at a
neighboring property (Romanowski Property) prior to reaching the Property.

       3
         Carroll received the deed to the Property on September 28, 2000. He later received a
corrective deed for consideration of $1.00 on November 13, 2000, granting him any rights to all
easements over the Romanowski Property. (R.R. at 102a-06a.)

       4
           The Assignment states as follows:

                  HELEN OLA O’LEARY and ESTHER DURDON, for good and
                  valid consideration, and intending to be legally bound, do hereby
                  transfer and assign to E. BRENDAN CARROLL, all of our right,
                  title and interest in and to a certain cause of action, set forth in the
                  Complaint filed against Exeter Township Board of Supervisors, to
                  No. 51-E of 1998, in the Court of Common Plea [sic] of Luzerne
                  County; and all of our right, title and interest in and to any claims
                  arising out of, or by reason of, our ownership of the land described
                  in Luzerne County Deed Book 2613, at Page 101.

(R.R. at 159a.)



                                                     3
Township filed preliminary objections, which the trial court denied. The Township
did not appeal this denial.5 (R.R. at 2a, 11a-13a, 20a-24a, 30a, 102a-04a, 147a-
49a, 159a.)
                Subsequently, the trial court appointed a board of viewers. In 2004,
the Township enacted Ordinance No. 2,6 which rescinded Ordinance No. 1 and

       5
          Pursuant to Pennsylvania Rule of Appellate Procedure 311(g)(1)(iii), Pa.R.A.P.
311(g)(1)(iii), in eminent domain cases a party must appeal from an order overruling preliminary
objections in order to preserve the objections for subsequent appeal. Because the Township
never appealed from this denial, the de facto taking of the Property has been established.

       6
           Exeter Township, Pa., Ordinance 2004-2 (Mar. 9, 2004). Ordinance No. 2 states as
follows:

                        WHEREAS, the Board of Supervisors of the Township of
                Exeter were presented with an issue regarding whether a purported
                property which abuts a railway known as Searfoss Road had been
                open to, or used by, the general public, for a period substantially in
                excess of twenty one (21) years; and
                        WHEREAS, in an attempt to resolve the dispute for
                citizenry and, particularly, the owners of the property which front
                and/or abut all sides of Searfoss Road . . . .
                        WHEREAS, although refusing to acknowledge that any
                and all property which fronts and/or abuts the public road known
                as Searfross [sic] Road (a/k/a Castle Road) was, in fact, purported,
                professed and/or public, the Board of Supervisors in the Township
                of Exeter passed Ordinance No. 1 of 1998 on or about August 3,
                1998 vacating the purported public road, street, alley or
                thoroughfare;
                        WHEREAS, 53 P.S. §67305 of the Second Class
                Township Code provides for the procedures for a board of
                supervisors to vacate any road or highway or section thereof;
                        WHEREAS, said procedure requires that if the board of
                supervisors votes in favor of exercising the power to vacate said
                road, it shall enact the necessary ordinance and file a copy of the
                ordinance, together with a draft or survey of the road, showing the
                location route thereof, in the Office of the Clerk of the Court of
                Common Pleas;
(Footnote continued on next page…)
                                                  4
returned all land rights to the situation that existed prior to the enactment of
Ordinance No. 1. Following the enactment of Ordinance No. 2, the board of


(continued…)

                      WHEREAS, subsequent thereto, any resident or property
              owner effected by the ordinance may within thirty (30) days after
              the enactment of the ordinance by the board of supervisors, upon
              entering in the court sufficient surety to indemnify the board of
              supervisors for all costs incurred in the proceedings, file exceptions
              to the ordinance, together with a petition for review;
                      WHEREAS, the Board of Supervisors of the Township of
              Exeter do hereby confirm that they have failed to file the statutory
              requirements as set forth in §67305 of the Second Class Township
              Code;
                      WHEREAS, the effect of which precludes the citizenry of
              challenging the enactment of said Ordinance vacating the
              purported Road by filing the appropriate exceptions thereto; and
                      WHEREAS, the Board of Supervisors of the Township of
              Exeter do hereby desire to remedy the situation at issue;
                      AND NOW, THEREFORE, BE IT ENACTED AND
              ORDAINED, by the Board of Supervisors of the Township of
              Exeter, County of Luzerne, Commonwealth of Pennsylvania, and
              IT IS HEREBY ENACTED AND ORDAINED, by the authority
              of same as follows:
                      (1)    that Ordinance No. 1 of 1998, vacating a section of
              roadway on or near Searfoss Road (a/k/a Castle Road) is hereby
              vacated and/or rescinded as being procedurally defective;
                      (2)    the enactment of this Ordinance shall revert all land
              ownership, rights-of-way, etc., as same existed prior to August 3,
              1998; and
                      (3)    the Board of Supervisors for the Township of
              Exeter do hereby reserve any and all rights provided to them in
              accordance with the Second Class Township Code pertaining to
              laying out, opening, changing or vacating any road or highway or
              section thereof, located within the Township of Exeter, Luzerne
              County.

(R.R. at 166a-68a.)



                                                5
viewers conducted a hearing and issued an award of damages for the 1998 taking,
from which the Township appealed to the trial court.7 (R.R. at 4a, 30a, 166a-68a.)
               On August 20-21, 2012, the trial court held a hearing.8                    Carroll
testified that the best way to access the Property would be to travel on Searfoss
Road and then to cross over the adjacent Romanowski Property. He stated that
there is another access road (Old Dirt Road) on the other side of the Property, but it
is a mile long and not maintained. He described Old Dirt Road as more like a trail.
Carroll further testified that he was in the negotiating process for the Property
when the Township passed Ordinance No. 1 in 1998 that vacated a portion of
Searfoss Road as public. However, Carroll stated that he was confident that
Searfoss Road was public, that the Township had illegally vacated it, and that he
would be able to gain access again. (R.R. at 51a-53a.) Moreover, upon purchase
of the Property, Carroll took the Assignment from the Durdons. (R.R. at 159a.)
               Carroll testified that he hired Frank Grabowski (Grabowski), a
professional land surveyor, to survey the Property; however, at the time Carroll


       7
         An appeal from the board of viewers’ award is heard de novo. Tinicum Real Estate
Holding v. Department of Transportation, 389 A.2d 1034, 1037 (Pa. 1978). The board of
viewers’ report and award are inadmissible as evidence. Section 703(3) of the Eminent Domain
Code (Code), Act of June 22, 1964, P.L. 84, as amended, 26 P.S. §1-703(3) (“The report of the
viewers and the amount of their award shall not be admissible as evidence.”). This matter was
commenced before the consolidation of the Code in 2006. See 26 Pa.C.S. §§101–1106.
Therefore, the Act of June 22, 1964, Sp. Sess., P.L. 84, as amended, 26 P.S. §§1-101–1-903,
repealed by the Act of May 4, 2006, P.L. 112, applies in this case and all citations herein will be
to that act. Gehris v. Department of Transportation, 369 A.2d 1271, 1273 (Pa. 1977); In re
DeFacto Condemnation and Taking of Lands of WBF Associates, L.P., 972 A.2d 576, 580 n.2
(Pa. Cmwlth.), appeal denied, 982 A.2d 66 (Pa. 2009).

       8
         The docket indicates that after the board of viewers’ hearing in 2004 until the trial
court’s hearing in 2012 there were various motions and entries of appearances that delayed the
hearing before the trial court. (R.R. at 4a-7a.)


                                                6
testified, Grabowski had only provided documentation to Carroll demonstrating
that Searfoss Road was in fact a road and had not yet surveyed the Property.
Carroll stated that there is no other township, county, state, or federal road within
the vicinity of the Property. Carroll claimed that he lost property value after the
Township vacated Searfoss Road as public but that he was aware that Ordinance
No. 2 rescinded Ordinance No. 1.         He further stated that the rescission of
Ordinance No. 1 had no practical effect on his access to the Property. Carroll also
testified that he has incurred expenses throughout the process of trying to resolve
the question of whether Searfoss Road extends to the Property. (R.R. at 53a-54a,
60a.)
             On cross-examination, Carroll testified that he was aware that
Searfoss Road had been vacated as public by the Township when he purchased the
Property in 2000. Carroll indicated in an October 10, 2003 deposition that he
planned to gain access to the Property after the purchase and that there had been no
change in the Property since that time. Carroll stated that he received rights from
the Durdons to file the de facto taking lawsuit and acknowledged that he is
claiming damages for the loss of the opportunity to develop the Property in the
future. Carroll stated that he could not testify to the legality of any other access
point to the Property and that Searfoss Road abutted the Property until Ordinance
No. 1 vacated the road. Carroll also noted that he has no personal knowledge of
any legal action taken by the previous owners and that the original deed to the
Property does not mention an easement over Searfoss Road or the Romanowski
Property. (R.R. at 55a-58a, 60a.)
             Grabowski testified that the previous landowners initially hired him to
find an access road to the Property and that he continued this service for Carroll


                                         7
after Carroll acquired the Property. Grabowski testified that Ordinance No. 2 only
opened Searfoss Road to the Romanowski Property. He further testified that there
is no mention of a roadway or an easement in the deed that conveyed the Property
to Carroll. Grabowski stated that a 1959 Township ordinance ended Searfoss Road
at the Romanowski property line. However, Grabowski also stated that a 1900
Township ordinance, since repealed, extended Searfoss Road through the
Romanowski Property and a map of the area from the year 1900 depicted this
extension. Grabowski testified that he had never seen anyone use the portion of
Searfoss Road that extended across the Romanowski Property prior to 1998. (R.R.
at 62a-63a, 77a-78a.)
             Anthony Cherundolo (Cherundolo), a real estate appraiser, testified
that Carroll hired him to appraise the Property and that he did so on August 7,
2002, using the market approach and citing comparable sales. Cherundolo testified
that, with the vacation of Searfoss Road, the fair market value of the Property after
the de facto taking in 1998 was the same as the purchase price, $134,400.00. He
further testified as follows:

             [Carroll’s Attorney]: But in addition to the visits you’ve
             described and so forth that you saw when you were up
             there, did you look at access from any other view than
             the --

             [Cherundolo]: There was -- there was -- at the time I did
             the appraisal, there was a former access from I think it
             was Searfoss Road. Now Searfoss Road comes in off --
             if you went up Schooley Road, I think it’s the first or
             second right-hand turn, and you would follow that back
             into the site. But there was not physical access. A
             garage was built on the cartway. And at that particular
             time the property had been -- the roadway had been
             vacated, at the time of my appraisal. So I did it as of the
             assumption that we were doing a hypothetical appraisal

                                         8
             saying if the road was not vacated, what would the
             property be worth to a developer? And that’s what I
             developed.

             [Carroll’s Attorney]: And you did come up with a
             valuation, did you not?

             [Cherundolo]: Yes. My indicated value with the road
             not being vacated was $650,000[.]
(R.R. at 68a-69a.)
             Joseph O’Connor (O’Connor), a real estate broker and a broker
appraiser testified that he performed an appraisal of the Property on February 8,
2003, also using the market approach, which relies upon comparable sales, and he
opined that the Property had a fair market value of $134,400.00, Carroll’s purchase
price. O’Connor stated that there were no roads leading to the Property on which
he felt comfortable driving his car. He also opined that the Property would not
appreciate in value if there were more than limited access to the Property because
of the Property’s rough terrain. (R.R. at 64a-67a.)
             Jack Ruane (Ruane), the Township’s supervisor, testified that he
always understood that Searfoss Road ended at the Romanowski Property. He
added that he never saw a visible road that continued to the Property. Ruane
testified that Old Dirt Road was not a Township road and was never maintained by
the Township. (R.R. at 73a-74a.)
             Joseph Romanowski (Romanowski), the owner of the Romanowski
Property, testified that the prior owner of the Property used Old Dirt Road to
access the Property. Romanowski stated that the Township paved Searfoss Road
in 1973 and that the paved road stopped at the Romanowski Property. He also
stated that the road on the Romanowski Property that extends to the Property is a
“farm road” used by his family for its tractors. (R.R. at 75a-76a.)

                                          9
               At the conclusion of the hearing, the trial court denied the Township’s
motion in limine to set aside the denial of its preliminary objections and the denial
of its motion for summary judgment,9 thus limiting the sole issue for determination
by the trial court to an award of damages. (R.R. at 78a-79a.) The trial court also
denied the Township’s motion in limine for preclusion of the corrective deed and
the Assignment so as to keep these documents in the record for any possible appeal
of the denial of the preliminary objections.10 (R.R. at 79a.) However, the trial
court noted that these documents had no direct bearing on his award of damages to
Carroll. (R.R. at 79a.)
               The trial court awarded damages to Carroll that included: $22,410.20
“attributable to the difference in the fair market value of the subject property prior
to the passage of Ordinance No. 1 in calendar year 1998 by Exeter Township
supervisors, less the fair market value after the passage of that ordinance,” (R.R. at
79a); $7,937.50 for professional surveyor’s fees; $1,250.00 for appraisal fees; and

       9
         The orders denying the Township’s preliminary objections and motion for summary
judgment were previously issued by two separate trial court judges. We note that the motion in
limine to set aside the denial of the preliminary objections and the denial of the motion for
summary judgment was improper, because, as we stated in County of Amusement Company v.
County of Cambria Board of Assessment Appeals, 692 A.2d 300, 301 n.7 (Pa. Cmwlth. 1997):

               [A] motion in limine is a pre-trial application before a trial court
               made outside the presence of a jury, requesting a ruling or order
               from the trial court prohibiting the opposing counsel from referring
               to or offering into evidence matters so highly prejudicial to the
               moving party that curative instructions cannot alleviate an adverse
               effect on the jury.

Id. (alteration in original) (citation and quotations omitted).

       10
          We note again that the Township never appealed from the denial of the preliminary
objections.


                                                  10
$500.00 for attorney’s fees.      The trial court accepted O’Connor’s testimony
regarding the comparable sales upon which he relied to determine the Property’s
fair market value after the de facto taking in 1998. The trial court also accepted as
credible the testimony of O’Connor and Cherundolo that the fair market value of
the Property after the taking was $134,400.00. However, the trial court disagreed
with O’Connor’s assessment that there would not be an increase in the Property’s
value if the Property had more than limited access. (R.R. at 79a-80a.) The trial
court stated that “[w]hat . . . O’Connor did not take into account, as the Court has
found, is that there was some reduced accessibility to the [P]roperty and usability
of the [P]roperty . . . and accordingly . . . the Court disagrees with . . . O’Connor’s
testimony and overrides it with its own finding as to diminution in fair market
value.” (R.R. at 80a.) The trial court also did not credit Cherundolo’s testimony
that the fair market value of the Property with access from Searfoss Road would be
$650,000.00, because the trial court found that the comparable properties upon
which Cherundolo relied were, in fact, not comparable. The trial court noted that
Cherundolo failed to establish the Property’s fair market value prior to the
enactment of Ordinance No. 1, in accordance with the Code, but only opined as to
what the fair market value of the Property would be if there were access from
Searfoss Road. (R.R. at 80a.)
             The trial court found:

                    In essence, the Court recognized -- recognizes that
             as a result of the subject de facto taken [sic], once again
             as previously determined by Judge Conahan, the value of
             the property was worth $100 less per-acre. Now, the
             value after is easily determined. The consensus view of
             both appraisers as well as the arms [sic] length sales
             price for the subject property amounted to $134,400.
             The Court’s focus takes into account that the impact on

                                          11
                property value was in some limited measure an
                impingement on the recreational use and incidental use
                of the subject property. There was credible testimony
                that ATV vehicles had been able to use the property.
                There was certainly no testimony that large vehicles of
                any size could readily access the property prior to the
                passage of the 1998 ordinance.

                                         *       *       *

                      At any rate, the actions of the township in passing
                the ordinance diminished the recreational use of the
                premises specifically in the area of things like quad
                vehicles or ATV vehicles, but arguably in the way of the
                property owner being able to simply visit one’s property
                and enjoy the view.
(R.R. at 79a-80a) (emphasis added). Thus, the trial court issued an order awarding
Carroll a total of $32,097.70 in damages for the de facto taking of the Property
between 1998, the year that the Township enacted Ordinance No. 1, and 2004, the
year that the Township rescinded Ordinance No. 1. The Township filed a motion
for post-trial relief, which the trial court denied by order dated August 26, 2013.
(R.R. 7a-8a, 216a-229a, 237a.) It is from this order only that the Township appeals
to this Court.
                The trial court issued an opinion in support of its August 26, 2013
order on November 12, 2013.11 Citing Pennsylvania Rule of Appellate Procedure
311(g)(1)(iii),12 the trial court stated:



       11
            Pa.R.A.P. 1925(a).

       12
           Pa.R.A.P. 311(g)(1)(iii) (“Under subdivision (e) of this rule shall constitute a waiver of
all objections to such orders and any objection may not be raised on any subsequent appeal in the
matter from a determination on the merits”).



                                                12
                Initially, this Court would note that it denied all of [the
                Township’s] motions that challenged whether or not a de
                facto taking had occurred on the ground that [the
                Township] had waived its right to do so by failing to file
                an appeal, pursuant to Pa.R.A.P. 311(e), of the Order of
                April 24, 2002, which overruled its preliminary
                objections.
(Trial court op. at 1.) The trial court stated that it assessed the damages for
professional surveyor’s fees, appraisal fees, and attorney’s fees based on the
credible testimony and documentary evidence presented at the hearing. Lastly, the
trial court relied on its rationale set forth on “[p]ages 134-143 of the ‘Transcript of
Hearing’” for its award of $22,410.20 in diminution damages. (Trial court op. at
2.)
                On appeal to this Court,13 the Township argues that: (1) the trial court
erred in awarding Carroll $7,937.50 in surveyor fees; (2) the trial court erred in
awarding Carroll $22,410.20 in diminution damages; (3) the trial court erred in
denying the Township’s motion in limine to preclude the corrective deed and the
Assignment; and (4) the trial court erred in failing to grant the Township’s motion
for post-trial relief because Carroll failed to present evidence that Searfoss Road
had public use for the past twenty-one years or establish that Searfoss Road was
deemed a public road by a Township ordinance or under the act commonly known
as the General Road Law.14




       13
           Our scope of review is limited to determining whether the trial court manifestly abused
its discretion or committed an error of law. Reading City Development Authority v. Lucabaugh,
829 A.2d 744, 747 (Pa. Cmwlth. 2003).

       14
            Act of June 13, 1836, P.L. 551, 36 P.S. §§1781–1785.



                                               13
                                     Diminution Damages
                The Township asserts that the trial court erred in awarding Carroll
$22,410.20 in damages for the diminution in the Property’s value because Carroll
failed to establish the difference between the fair market value of the Property
immediately before the condemnation and the fair market value of the Property
immediately after the condemnation.
                Section 609 of the Code15 states “[j]ust compensation shall consist of
the difference between the fair market value of the condemnee’s entire property
interest immediately before the condemnation and as unaffected thereby and the
fair market value of his property interest remaining immediately after such
condemnation and as affected thereby, and such other damages as are provided in
this code.” Id. (emphasis added). Fair market value is defined and determined
according to section 603 of the Code as follows:

                      Fair market value shall be the price which would
                be agreed to by a willing and informed seller and buyer,
                taking into consideration, but not limited to, the
                following factors:

                       (1)   The present use of the property and its
                             value for such use.
                       (2)   The highest and best reasonably
                             available use of the property and its
                             value for such use.
                       (3)   The machinery, equipment and
                             fixtures forming part of the real estate
                             taken.
                       (4)   Other factors as to which evidence
                             may be offered as provided by Article
                             VII.

      15
           26 P.S. §1-609.



                                            14
26 P.S. §1-603.
              “The amount of damages shall be determined by the court unless a
jury trial has been demanded.” Section 517 of the Code, 26 P.S. §1-517. “The
court may confirm, modify, change the report or refer it back to the same or other
viewers. A decree confirming, modifying or changing the report constitutes a final
order.” Id.16 Where a de facto taking has occurred, it is the condemnee’s burden
to prove on appeal from the board of viewers’ award the fair market value of the
property immediately before and after the date of the de facto taking. Benkovitz v.
Urban Redevelopment Authority of Pittsburgh, 425 A.2d 1178, 1181 (Pa. Cmwlth.
1981).
              Here, Carroll did not present any evidence to establish the fair market
value of the Property prior to the de facto taking in 1998, which is the burden of
proof that he must carry as the condemnee. Benkowitz. As the trial court correctly
noted, Cherundolo offered no opinion regarding the fair market value of the
Property prior to the 1998 de facto taking but only hypothesized as to the
Property’s value at the time of his appraisal in 2002 if the Property had access from
Searfoss Road. The only other evidence in the record from Carroll is testimony
describing the lack of access to the Property and the loss of enjoyment and use of
the Property, which does not establish a fair market value basis prior to the 1998
taking, as is necessary in order for the trial court to determine the appropriate
amount of diminution damages due to Carroll.                The trial court also rejected
Cherundolo’s appraisal that the Property would be worth $650,000.00 if Searfoss
Road had not been vacated as public. As the trial court recognized, the record is

       16
          Notably, the statute does not provide that the trial court must accept an exact value
presented by either party.


                                              15
devoid of any evidence from Carroll upon which the trial court could rely to
determine the value of the Property prior to the de facto taking.
               While the trial court accepted O’Connor’s testimony as credible
regarding comparable properties that he used in determining the fair market value
of the Property after the 1998 taking, Carroll failed to meet his initial burden of
proving the fair market value of the Property prior to the 1998 taking.17 26 P.S.
§1-609; Benkowitz. Thus, the trial court erred in awarding damages for diminution
in the Property’s value.18


       17
          Because Carroll has failed to establish that he is entitled to an award of damages for the
diminution in value of the Property, it follows that he is also not entitled to surveyor’s fees,
appraisal fees, and attorney’s fees. 26 P.S. §1-609 (“Where proceedings are instituted by a
condemnee under section 502(e), a judgment awarding compensation to the condemnee for the
taking of property shall include reimbursement of reasonable appraisal, attorney and engineering
fees and other costs and expenses actually incurred.”); Marx Stationery & Printing Company v.
Redevelopment Authority of City of Philadelphia, 675 A.2d 769, 778 (Pa. Cmwlth. 1996) (“We
believe that . . . costs and fees . . . may be awarded only to condemnees who have been awarded
damages for a ‘taking’ of property.”).

       18
           The Township also contends that the trial court erred in denying the Township’s
motion in limine to preclude the corrective deed and the Assignment. In essence, the Township
is arguing that Carroll lacked the capacity to sue because there was lack of consideration for the
corrective deed and the Assignment is barred by the doctrine of champerty, which “is a bargain
by a stranger with a party to a suit, by which such third person undertakes to carry on the
litigation at his own cost and risk, in consideration of receiving, if successful, a part of the
proceeds or subject to be recovered.” Clark v. Cambria County Board of Assessment Appeals,
747 A.2d 1242, 1245 (Pa. Cmwlth. 2000). However, the lack of capacity to sue must be raised
on preliminary objections, which the Township failed to do. Pa.R.C.P. No. 1028(a)(5)
(“Preliminary objections may be filed by any party to any pleading and are limited to the
following grounds . . . lack of capacity to sue, nonjoinder of a necessary party or misjoinder of a
cause of action.”). The Township raised preliminary objections and “[a]ll preliminary objections
shall be raised at one time.” Pa.R.C.P. No. 1028(b). Lack of capacity to sue is waived if not
raised on preliminary objections pursuant to Pennsylvania Rule of Civil Procedure 1032(a),
which provides:

(Footnote continued on next page…)
                                                16
               Accordingly, we reverse.19



                                                   ________________________________
                                                   PATRICIA A. McCULLOUGH, Judge


Judge McGinley concurs in result only.


(continued…)

               A party waives all defense and objections which are not presented
               either by preliminary objection, answer or reply, except a defense
               which is not required to be pleaded under Rule 1030(b), the
               defense of failure to state a claim upon which relief can be granted,
               the defense of failure to join an indispensable party, the objection
               of failure to state a legal defense to a claim, the defenses of failure
               to exercise or exhaust a statutory remedy and an adequate remedy
               at law and any other nonwaivable defense or objection.

Pa.R.C.P. No. 1032(a). Thus, the Township waived this argument. Moreover, the trial court
specifically “emphasize[d] that [the corrective deed and the Assignment] have no direct bearing
on the Court’s review of the evidence that it considers relevant to its charge to determine just
compensation in the way of an award of damages in this matter.” (R.R. at 79a.)

       19
           The Township further contends that the trial court erred in finding that Searfoss Road
had been a public road for the past twenty-one years or had been deemed a public road through
the General Road Law or a Township ordinance. However, this argument involves the merits of
the case, which have been decided by the denial of the preliminary objections by the trial court
on April 24, 2002. As addressed above, “[a]n appeal may be taken as of right from an order
overruling preliminary objections to a declaration of taking and an order overruling preliminary
objections to a petition for appointment of a board of viewers.” Pa.R.A.P. 311(e) (emphasis
added). “Where an interlocutory order is immediately appealable under this rule, failure to
appeal . . . [u]nder Subdivision (e) of this rule shall constitute a waiver of all objections to such
orders and any objection may not be raised on any subsequent appeal in the matter from a
determination on the merits.” Pa.R.A.P. 311(g)(1)(iii). Here, the Township has appealed from
the trial court’s order awarding damages and not from the trial court’s order denying the
Township’s preliminary objections. Thus, the Township has waived any argument regarding the
merits of whether a de facto taking occurred.


                                                 17
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


E. Brendan Carroll                    :
                                      :    No. 1580 C.D. 2013
            v.                        :
                                      :
Exeter Township, Luzerne County,      :
Pennsylvania,                         :
                  Appellant           :

                                   ORDER


            AND NOW, this 4th day of August, 2014, the August 26, 2013 order
of the Luzerne County Court of Common Pleas is reversed.



                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge
