IN THE SUPREME COURT OF PENNSYLVANIA

Case No. __________

In re: Condemnation by the COMMONWEALTH OF

PENNSYLVANIA, DEPT. OF TRANSPORTATION,
Eminent Domain of Right of Way for State Route 0083,
Section 025, a Limited Highway in York County

REAL PLACES, LP,

Petitioner/Condemnee

v.

COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Respondent/Condemnor

PETITION FOR ALLOWANCE OF APPEAL

Petition for Allowance of Appeal from the Order of the

Commonwealth Court dated December 4, 2008

Rees Griffiths, Esq. (No. 21896)

Eric Suter, Esq. (No. 202017)
CGA LAW FIRM
135 North George Street
York, Pennsylvania 17401
Tel: (717) 848-4900
Fax: 717-843-9039
rgriffiths@cgalaw.com
esuter@cgalaw.com
Attorneys for Real Places, L.P.

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 TABLE OF CONTENTS
TABLE OF AUTHORITIES .............................................................................................ii

I.     Opinions Below .............................................................................................. 1  

II.     Orders in Question.......................................................................................... 1  

III.     Question Presented ......................................................................................... 2  

IV.     Statement of the Case ..................................................................................... 3  

V.     Reasons for Allowing the Appeal................................................................... 6  

A.     Admissibility of Open-Market Transactions as Evidence of Fair

Market Value Is an Open Question of Considerable Substance .......... 7  

B.     There Is No Justification for Expansion of the Scavo Rule ............... 10  

VI.     Conclusion .................................................................................................... 12  

i
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 TABLE OF AUTHORITIES

Cases:

In re Taking in Eminent Domain of Certain Parcels Located

in the Central Business District, 348 A.2d 480 (Pa. Cmwlth. 1975) ...............

In re City of Bethlehem, Northampton County v. Weidner,

474 Pa. 75, 376 A.2d 641 (1977)......................................................................

Community H.S. v. Pittsburgh Urban Red. Auth.,

435 Pa 344, 253 A2d. 260 (1969).....................................................................

Scavo v. Commonwealth, 439 Pa 233, 266 A2d. 759 (1970) .....................................

Statutes:

26 Pa. C.S.A. § 302(a)(1)............................................................................................

26 Pa. C.S.A. § 302(a)(2)............................................................................................

26 Pa. C.S.A. § 307(a)(1)(i-iii) ...................................................................................

Rules:

Pa. Rule App. P. 1112.................................................................................................

Pa. Rule App. P. 1114.................................................................................................

ii
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I. Opinions Below
A panel of the Commonwealth Court, consisting of Judges McGinley, Butler

and Flaherty, issued the opinion below on December 4, 2008 in Case Number 312
C.D. 2008. The Commonwealth Court’s opinion is reported at 2008 Pa. Commw.

LEXIS 590 (2008) sub nom. Commonwealth of Pennsylvania, Department of

Transportation v. Peoples Bank of Glen Rock, et al.1

II. Orders in Question
The Commonwealth Court’s December 4, 2008 Order states: “And now,

this 4th day of December, 2008, the order of the Court of Common Pleas of York

County in the above-captioned matter is affirmed.”

A copy of the Order and Opinion of the Commonwealth Court is appended

hereto as Appendix A. Also appended to Real Places’ Petition are the two trial

court rulings that the Commonwealth Court considered and affirmed on appeal.

See Appendix B (Feb. 12, 2008 Order & Opinion Denying Motion for Post-Trial

Relief); Appendix C (Oct. 25, 2007 Order & Opinion Granting Motion in Limine).

The Commonwealth Court’s December 4, 2008 Order is a “final order”

within the meaning of Pa R. App. P. 1112(a). The Court may allow an appeal of

that Order pursuant to 42 Pa. C.S. § 724(a).

1
The omnibus Declaration of Taking filed in this action took property from numerous land owners in connection
with the Commonwealth’s improvements to a section of Interstate 83 locally known as “Dead Man’s Curve.”
Although the caption of the Commonwealth Court’s opinion identifies numerous parties to the Declaration of
Taking, the instant Petition implicates the rights and interests only of petitioner, Real Places, L.P., which is the
successor in interest to BL&B Associates and legal owner of the property in question. See Stipulation, Trial
Transcript at 58:14-18 (Appellee’s Supp. RR at 11b).

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III. Question Presented
Should the Court, which split 3-3 when it last considered the issue in 1977,

accept for review the question of whether the open-market purchase price paid to
acquire comparable neighboring properties is admissible against a condemnor as

evidence of the fair market value of a condemnee’s property.

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IV. Statement of the Case
This action for determination and payment of just compensation arises in

connection with the Pennsylvania Department of Transportation’s (“PennDOT”)

improvement of a portion of Interstate 83 colloquially referred to as Dead Man’s

Curve. By means of an omnibus Declaration of Taking filed September 26, 2002,

PennDOT condemned, along with numerous other parcels, a roughly one-acre

portion of Real Places, L.P.’s (“Real Places”) property located to the immediate

southeast of the I-83 Leader Heights interchange. Prior to PennDOT’s taking, the

Real Places property had been put to use as a gas station and convenience store.

Following condemnation, a roughly one-acre portion of leftover property remained

in Real Places’ hands (“Remaining Property”) and was left vacant and unused.

In connection with its improvements to Dead Man’s Curve, PennDOT

entered into an open-market transaction with Atlantic Refining & Marketing Corp

(“Arco”) to acquire roughly two-thirds of an acre located to the immediate

southwest of the Leader Heights interchange. Prior to PennDOT’s purchase, the

Arco property had also been used as a gas station and convenience store. Located

directly opposite of—and approximately an “eight iron” away from—Real Places’

property, the Arco property, which had been put to an identical use, fetched a

negotiated, open-market price of $627,000, which works out to approximately

$940,000 on a per-acre basis. See Offer of Proof (Dec. 11, 2007) (RR 3-4); id. at

69 (RR 08); Trial Exhibit 21 (RR 21-26). Unlike Real Places’ property (and the

property of numerous other nearby landowners), the Arco Property was not a

subject of PennDOT’s omnibus Declaration of Taking.

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 Before the Board of View, and subsequently at trial, PennDOT asserted that,

prior to the taking, Real Places’ acre had been worth approximately $310,000. In
response, Real Places sought to introduce evidence that Real Places’ property was

located at the same interchange and had been devoted to the same use as Arco’s

smaller property, for which PennDOT had voluntarily paid $940,000 on a per-acre
basis within two months of taking Real Places’ property. See id.

Relying on Scavo v. Commonwealth, 439 Pa 233, 266 A2d. 759 (1970), the

trial court excluded Real Places’ evidence (testimony and exhibits) regarding the

comparable nature of the Arco property, the purchase price PennDOT negotiated,

and the Arco transaction’s fitness as a basis for valuing Real Places’ land on a pre-

taking basis. As a result of the trial court’s ruling, Real Places could make no

reference to—and the jury was left wholly unaware of—PennDOT’s open-market

Arco purchase, which otherwise constitutes relevant, reliable, and persuasive

evidence of the pre-taking value of Real Places’ similarly-situated property. See

Offer of Proof (RR 1-20); Trial Exhibit 21 (RR21-26).

In addition to excluding evidence related to PennDOT’s acquisition of the

Arco property, the trial court also precluded evidence of PennDOT’s October 30,

2002 voluntary purchase of the roughly .14 acre Miller property. See Offer of

Proof (RR 1-20). The Miller property was immediately adjacent to Real Places’

property, or, as Real Places’ representative put it before the Board of View, about a

“putt” away from the condemned portion of Real Places’ land. See Offer of Proof.

PennDOT rewarded the owners of the Miller property with a per-acre price of

nearly $1.2 million—almost quadruple the per-acre value PennDOT attributed to

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Real Places’ adjoining parcel in condemnation proceedings. See Trial Exhibit 22

(RR 27).
Evidence of the open-market price PennDOT voluntarily negotiated and paid

for two similarly-situated properties was essential for the jury fairly to determine

the value of Real Places’ property and compensate Real Places in just fashion. In
simplest terms, PennDOT’s open-market purchases of nearby parcels—including a

parcel functionally identical to the property at issue—convincingly impeached its

claim that Real Places’ land enjoyed a pre-taking value of only $310,000 per acre.

Procedurally, Real Places preserved the issue of the admissibility of such

evidence at every opportunity. PennDOT’s Arco and Miller transactions were first

presented to the Board of View and subsequently excluded from the Board’s

consideration. In the trial court, PennDOT raised the issue by means of a pre-trial

motion in limine, which the trial court granted over Real Places’ opposition. At

trial, Real Places made, outside the jury’s presence, an on-the-record offer of proof

regarding the Arco/Miller transactions. Finally, based on its offer of proof, Real

Places sought post-trial relief to remedy the court’s exclusion of the evidence.

At the conclusion of trial, the jury, having been kept in the dark regarding

PennDOT’s open-market purchases of the neighboring Arco and Miller properties,

rendered a verdict awarding Real Places just compensation in the amount of

$415,000—an amount less than half that with which PennDOT rewarded Arco for

nearby property of a functionally identical nature.

Having properly preserved the issue for review, Real Places noticed an

appeal to the Commonwealth Court. On appeal, Real Places raised only the issue

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of the admissibility of evidence relating to PennDOT’s open-market purchases of

similarly-situated property. The court first determined that, “[a]lthough no

declaration of taking was filed with respect to the Arco and Miller properties, it is

clear that DOT could have filed declarations just as it did for [Real Places’]

property.” PennDOT v. Peoples Bank of Glen Rock, et al., slip op. at 8 (App. A).
Based on its decision in In re Taking in Eminent Domain of Certain Parcels

Located in the Central Business District, 348 A.2d 480 (Pa. Cmwlth. 1975), aff’d

sub nom. In re City of Bethlehem, Northampton County v. Weidner, 474 Pa. 75,

376 A.2d 641 (Pa. 1977)), the court held “it was not necessary for a declaration of

taking to be filed in order to preclude evidence of a sale of a neighboring property

to a condemnor.” App. A at 8-9.

V. Reasons for Allowing the Appeal
Real Places timely petitions this Court for review of the issue that resulted in

it being awarded just compensation in amount less than half that which PennDOT

paid, on a per-acre basis, to acquire neighboring land functionally identical to Real

Places’ property. See Pa. R. App. P. 1112(c). On the only occasion this Court

considered the issue raised in Real Places Petition, the Court was evenly divided

(3-3), resulting in the default affirmance on which the lower court relied. See City

of Bethlehem, 474 Pa. 75, 376 A.2d 641; App. A at 9 (“Based on this Court’s

decision in [Bethlehem], which our Pennsylvania Supreme Court affirmed, this

Court determines that the trial court did not err”). Accordingly, Real Places’

Petition raises “a question of substance not theretofore determined by the Supreme

Court.” Pa. R. App. P. 1114, Note (1). Because the issue also concerns the rights

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of the governed against government, it likewise presents an issue of considerable

public importance.
Over thirty years having passed, the time is ripe for the Court to revisit the

issue and resolve the question of whether PennDOT and other taking authorities

may shield their open-market transactions from a fact-finder’s consideration in just

compensation proceedings. As explained below, such a rule is inconsistent with a

taking authority’s duty to the public fisc and, more fundamentally, results in the

exclusion of highly probative evidence to the palpable detriment of landowners

with whom a taking authority chooses to litigate instead of negotiate.

A. Admissibility of Open-Market Transactions as Evidence of Fair

Market Value Is an Open Question of Considerable Substance
The trial court reluctantly relied on this Court’s decision in Scavo v.

Commonwealth of Pennsylvania, Dept. of Highways, 493 Pa. 233, 266 A.2d 759

(1970), to exclude evidence of the purchase prices PennDOT negotiated in

connection with its open-market acquisition of comparable properties:

While I may agree with [Real Places’] arguments, I am

bound to follow the precedent which I believe applies to
the rulings I am called upon to make as a trial judge.
Believing the Scavo case control[s], I am constrained to
deny [Real Places’] Post Trial Motion for a New Trial.
App. B at 2. The issue below, however, was not presented in Scavo. In Scavo, this

Court excluded evidence of the amount a taking authority paid to settle a pending

condemnation proceeding in the midst of jury trial. Regardless of the continuing

merit of the Scavo decision on its own terms, Scavo’s exclusionary rule should not

{00254280/1} 7
be extended to shield evidence of open-market transactions, i.e., transactions

consummated outside the strictures of formal condemnation proceedings.

In the only case to raise the precise issue implicated in Real Places’ Petition,

this Court was evenly divided (3-3) and did not render a precedential decision. See

City of Bethlehem, 474 Pa. 75, 376 A.2d 641. While the Court did not provide
relief in Bethlehem, the views of the three Justices in Bethlehem who favored

reversal remain compelling today. Writing in favor of a new trial to permit

evidence of comparable, open-market purchases, Justice Mandarino explained:

[We] disagree with the conclusion in the opinion in

support of affirmance that the appellants were not
entitled to introduce into evidence as a comparable sale
the [condemnor’s] purchase of the Greenberg property[.]
Although I have serious reservations about the
correctness of decisions in Scavo v. Com. of Pa., Dept of
Hwys, 439 Pa. 233, 266 A.2d 759 (1970) and Community
H.S. v. Pgh. Urban Red. Auth., 435 Pa 344, 253 A2d. 260
(1969), those cases are distinguishable[.]

In Scavo, supra, and Community Services, supra,

condemnation had taken place. In this case, no
declaration of taking had been filed when the condemnor
purchased the alleged “comparable sale” property.
Although a sales price pursuant to a jury verdict may not
be a “comparable sale,” the sales price negotiated
between the condemnor and condemnee has to have a
reasonable relationship to market value. If it did not, the
condemnor is either making a gift of public monies or
coercing the condemnee in some way to accept an
unreasonably low settlement. Since the condemnor is
bound by law not to pay in excess of market value, the
condemnee in fairness should be permitted to introduce
evidence of the Greenberg purchase in this case.

. . . The price that the Redevelopment Authority paid to

the Greenbergs is evidence of reasonable value
(otherwise the condemnor is violating the law).

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Bethlehem, 474 Pa. at 80-81, 376 A.2d. at 644.

Consistent with the concerns Justice Mandarino voiced on behalf of half the
Court, given the facts of this case, one of two things must be true: either PennDOT

radically overpaid adjacent landowners (in which case PennDOT has acted

unlawfully) or PennDOT will radically underpay Real Places (in which case
PennDOT has acted unjustly). The expansion of the Scavo rule to insulate open-

market transactions is the root of either evil. The rule permits authorities to reward

favored landowners with windfall purchase prices and eliminates any concern that

such transactions will haunt them in condemnation proceedings against landowners

who, for whatever reason, fall outside the scope of government largess. On the

flip-side, the rule actively encourages underpayment by depriving a fact-finder of

evidence it would find most useful in determining just compensation. Contrary to

citizens’ bedrock expectation of equal justice under law, the exclusionary rule all

but guarantees disparate treatment of similarly-situated landowners.

If review is accepted, the Court need not re-consider the rule of Scavo itself,

which only applies to transactions made within condemnation proceedings. The

fact, however, that three Justices of an evenly divided court expressed “serious

reservations about the correctness” of the Scavo rule militates strongly in favor of

accepting for review a case that implicates expansion of that rule. See id.

The Court should accept review of this important and unresolved matter to

affirmatively consider whether taking authorities warrant evidentiary protection

from the otherwise ordinary consequences of their open-market transactions.

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 B. There Is No Justification for Expansion of the Scavo Rule
As the jury’s award indicates, the exclusion of PennDOT’s open market

acquisition of the comparable—indeed, functionally identical—Arco property

allowed PennDOT to manipulate the evidence of fair market value. On the one
hand, PennDOT asserted that Real Places’ purchase and sale of commercial real

estate located thirty miles distant was evidence of fair market value in this action.

On the other hand, PennDOT was permitted to shield its own open-market
acquisitions of comparable properties at the very interchange in question. In sum,

PennDOT was able to ride its horse to water and make it drink, shielding itself

from highly probative, but damaging, facts, while saddling Real Places with the

consequences of its own, far less probative, transactions.

The justification PennDOT offered in favor of applying Scavo to open-

market purchases—that it could be forced to pay more than fair market value on

account of a landowner’s leverage or superior bargaining power—is, in Bentham’s

words, nonsense on stilts. PennDOT’s suggestion that it could be forced to pay a

premium based on its need for immediate possession or desire to avoid litigation

blinks the vast powers it enjoys under the Eminent Domain Code, which ensure

that a private landowner can never take advantage of a taking authority.

Under the Code, PennDOT (or any taking authority) can file a declaration of

taking and obtain title to any property necessary for a valid public use, without

prior notice, demand, negotiation, supervision, or restriction. See 26 Pa. C.S.A. §

302(a)(1) and (2). PennDOT can likewise obtain immediate possession of such

property through the simple expedient of paying estimated just compensation—just

{00254280/1} 10
as it did in connection with its taking of Real Places’ property. See 26 Pa. C.S.A. §

302(a)(2) and 307(a)(1)(i-iii). PennDOT’s portrayal of itself as a powerless,

pitiable, giant needing special evidentiary privileges to overcome the restraints of

Lilliputian landowners would be laughable save that the privilege it claims can

be—and was—wielded to the end of manifest injustice.

Given its sweeping powers under the Code, PennDOT can wind up paying

more than fair market value only to the extent the acquisition process is infected

with incompetence, neglect, favoritism, corruption or similar malfeasance. Such

matters ought rightly be exposed, not rewarded with evidentiary privileges that

shield otherwise embarrassing truths. Here, there was no claim that PennDOT

breached its trust or duty in negotiating its open-market purchases of the Arco and

Miller properties. It is undisputed that PennDOT paid both landowners fair market

value, arrived at through arms-length negotiation between willing parties. And it is

hardly a subject of fair dispute that, had the trial court permitted the jury to hear the

prices resulting from those negotiations, the verdict would have been different.

In the end, whenever a taking authority voluntarily relinquishes the coercive

power available to it under the Eminent Domain Code and acquires property on the

open market like any other private party, what the authority pays through

negotiation and agreement is every bit as probative of the value of comparable

property—if not far more probative—as prices negotiated and paid by other market

participants. Simply put, the price a taking authority pays to acquire comparable

property on the open-market amounts an admission regarding the fair market value

of that comparable property, and should be treated as such. Indeed, because

{00254280/1} 11
authorities entrusted with the power of eminent domain are forbidden from paying

more than fair market value, see Bethlehem, 474 Pa. at 80-81, 376 A.2d. at 644, a
fact-finder should give an authority’s open-market transactions added weight as

evidence of fair market value.

* * * * *
In Bethlehem, a majority of this Court could not agree to extend the rule of

Scavo to open-market transactions of the nature PennDOT negotiated in this case.

Likewise, a majority could not be found explicitly to exempt open-market

purchases from Scavo’s sweep. Because the issue is one of continuing public

importance, and one of great substance this Court has yet to resolve, the Court

should grant Real Places’ Petition for Leave to Appeal.

VI. Conclusion
For all the foregoing reasons, the Court should grant Real Places’ Petition

for Allowance of Appeal from the decision of the Commonwealth Court.

Date: January 5, 2008 Respectfully submitted,

CGA LAW FIRM

__________________________
Rees Griffiths, Esq. (No. 21896)
Eric Suter, Esq. (No. 202017)
135 North George Street
York, PA 17401
Tel: 717-848-4900
Fax: 717-843-9039
Attorneys for Real Places, L.P.

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 IN THE SUPREME COURT OF PENNSYLVANIA

Case No. __________

In re: Condemnation by the COMMONWEALTH OF

PENNSYLVANIA, DEPT. OF TRANSPORTATION, Eminent
Domain of Right of Way for State Route 0083, Section 025, a
Limited Highway in York County

REAL PLACES, LP,

Petitioner/Condemnee

v.

COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Respondent/Condemnor

CERTIFICATE OF SERVICE

I hereby certify that, on this 5th day of January 2009, a true and correct copy
of the foregoing Petition for Allowance of Appeal has been served via first-class

mail, postage prepaid at York, Pennsylvania, upon:

Donald J. Smith, Esq.

Office of the Chief Counsel
400 North Street, 9th Floor
P.O. Box 8212
Harrisburg, PA 17105-8212

__________________________
Eric Suter, Esq. (No. 202017)
CGA Law Firm
135 North George Street
York, PA 17401
Tel: 717-848-4900

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 Appendix of Relevant Orders & Opinions

Commonwealth Court

Dec. 04, 2008 Order & Opinion .............................................................................. A

York County Court of Common Pleas

Feb. 12, 2008 Order & Opinion Denying Motion for Post-Trial Relief ...................B
Oct. 25, 2007 Order & Opinion Granting PennDOT’s Motion in Limine................C

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