By: John E. Egers, Jr., Esquire

On August 22, 2023, a 4-member majority of the Pennsylvania Supreme Court in a precedential opinion ruled in favor of Peacock Keller’s client, Donald Bindas, who challenged PennDOT’s claim to his land based upon a 1958 highway plan.  

The high court found that Pennsylvania’s Highway Law, which governed the taking of private land for highway purposes from 1947 until 1964, required that PennDOT and its predecessor, the Pennsylvania Department of Highways, ensure that their highway plans are recorded in a plan book and indexed in a locality index maintained in local recorder of deeds offices.  As the 1958 highway plan in question was not recorded in a plan book and indexed in accordance with the law in the Washington County Recorder of Deeds office, the Supreme Court found the plan invalid.  The high court further found that PennDOT and its predecessor are responsible for ensuring that their filings are correctly recorded and indexed in the recorder of deeds office.  

The Supreme Court’s ruling has the potential for significant impact to PennDOT and Department of Highway claims in Washington County and other counties where a plan book and locality index do not exist in the local recording office or highway plans are not contained within such books and indexes.  The timeframe from 1947 until 1964 saw much of the interstate system construction in Washington County and elsewhere. In addition, many state highways were also constructed based upon highway plans approved in this timeframe. The taking of property from landowners within the past six years based upon highway plans developed under the State Highway Law could have the potential for damage claims as a result of the Supreme Court’s ruling.    

John E. Egers, Jr. is Of Counsel with Peacock Keller, LLP’s Litigation Department in its Washington, Pennsylvania office.  John represents clients in Pennsylvania and Federal trial and appellate level courts.   

We are pleased to announce that Jason D. Witt has joined Peacock Keller as an Of Counsel Attorney in our Energy and Business Departments.

Prior to joining Peacock Keller, Jason worked at the largest privately-owned coal mining company in the United States.  

“We are extremely excited to have Jason join our Energy and Business Departments.  Peacock Keller has long been known for providing exceptional legal services in the energy sector and Jason’s unique experience and understanding of the energy industry will serve as an invaluable resource for our clients.  Additionally, adding a West Virginia licensed attorney allows us to also better serve our existing clients and expand our legal footprint,” said Jonathan Higie, Managing Partner of Peacock Keller.

Jason graduated from West Virginia University in 2001, with a Bachelor of Mining Engineering.  In 2004, he earned his Juris Doctor from West Virginia University, College of Law.

Please join us in welcoming Jason to the Peacock Keller team.

By: John E. Egers, Jr., Esquire

As I looked for direction and inspiration for this column, I was reminded by one of my colleagues of the pivotal role played by a former Peacock Keller managing partner, Davis Yohe, in shaping Pennsylvania’s current eminent domain law. As I did my independent research on Mr. Yohe's life and accomplishments, I realized that it is an understatement to say that he lived a full life. I could write an entire column on his accomplishments and experiences, but I will save that for another day. 

Mr. Yohe’s influence upon the law of eminent domain in Pennsylvania gave me just the direction I needed to formulate this Peacock Tale, as I am currently representing a client in litigation that could significantly impact Pennsylvania’s eminent domain law, as well as further Peacock Keller’s long history of contributions to the law in this practice area. 

Most law students do not go to law school dreaming of pursuing a glamorous life in eminent domain law. That includes me. However, in my legal endeavors, I have come across an eminent domain issue unique to this corner of Pennsylvania.  Not only is this an interesting issue, it also carries potentially significant implications for landowners.    

The story starts with the creation of the Interstate Highway System, the impact of which on our economy, defense and daily lives in America cannot be measured.  Underlying the Interstate Highway System in some areas of Washington County is a law that is no longer used for condemning properties, but that nonetheless still impacts landowners today.

The State Highway Law was enacted in 1945. It provided specific powers to the Commonwealth to condemn property for highway use. The courts were not part of the condemnation process.  Essentially, the Department of Highways (precursor to PennDOT) would develop and approve a highway plan, which would then be submitted to the Governor for final approval.  The plan would identify the rights-of-way and easements condemned by the Commonwealth. However, unlike Pennsylvania's current condemnation law, the State Highway Law subjected the landowner to the Commonwealth’s rights-of-way and easements without completely removing all ownership rights to the property.

One court has described the scope of the Commonwealth’s property rights under the State Highway Law in this manner:

"Although the exact nature of such estates in land is difficult to pinpoint, the interest, while not a fee, is not a mere easement or right of way. It is more. It is the right to the actual and exclusive possession of the property at all times and for all purposes, and includes the right to build on the land, fence it in, and exclude other uses. It is comparable to a fee in the surface and so much beneath as may be necessary for support. This estate, taken from an owner under the right of eminent domain, has no further practical value to the owner in view of the rights of the state in it, unless the easement is formally abandoned." In re Marivitz, 636 A.2d 1241, 1243 (Pa. Commw. 1994) [emphasis supplied]

In my opinion, this type of eminent domain action was much more invasive, and had more negative consequences for a property owner, than the condemnation procedure under current eminent domain law. The current law permits the governmental entity to take an unqualified right to property under a fee simple interest in the land, leaving no interest for the property owner. By contrast, the State Highway Law left the property owner with some rights, which remained subject to the Commonwealth’s rights to use the land at any time.  Under the State Highway Law, a landowner was obligated to pay real estate taxes, while the Commonwealth had no such obligation.  The Commonwealth could also appear out of the blue and take various actions, such as widening a highway onto a landowner's property, or building a drainage system on the land without further legal proceedings.  Imagine trying to sell property containing a drainage system built by the Commonwealth, without the landowner's consent, and on which the landowner was still responsible for paying the property taxes!

Although current Pennsylvania eminent domain law affords significantly more rights to landowners, current purchasers and owners of land nonetheless may be affected by the prior chain of title if it includes conveyances under the prior State Highway Law.

So, what is the takeaway? For those considering purchasing real estate with a view of an interstate or other highway, we recommend that you have a thorough title examination performed, including review of state highway plans.  The state highway plans that were approved by the Governor prior to 1964 and that affect highways within your county are required to be available in the local recorder of deeds office.  However, most likely these plans will not be found within the standard chain of title that is revealed through a routine title search. Depending on the local practice of the recorder of deeds, the state highway plan may have been recorded in a location or format that is different from that used for the deed to your property. 

For those who already own real estate, there are currently limited avenues of recourse. For landowners, there may be recourse in the pending appeal before the Supreme Court of Pennsylvania in the matter of Bindas v. Commonwealth of Pennsylvania, Department of Transportation, 27 WAP 2022. Oral argument is scheduled for April 2023. I will be arguing the appeal on behalf of the landowner, Mr. Bindas. The Supreme Court’s decision could have far-reaching effects upon PennDOT’s current claims to land condemned decades ago under the State Highway Law.   Stay tuned!   

John E. Egers, Jr. is Of Counsel with Peacock Keller.  His practice focuses upon general litigation in federal and state courts, including eminent domain litigation, as well as real estate and employment law.

It is with great pleasure that Peacock Keller announces that John E. Egers, Jr. has joined us as an Of Counsel attorney in the firm's Litigation Department.  John was born and raised in Washington PA and grew up in a working-class household, the son of a machinist and a nurse.  

John brings a richness of experience to the firm with his 20 years in the legal profession.  A passionate advocate for his clients, John has represented clients in a variety of matters, including breaches of contract, civil rights, criminal defense, collections, expungements, juvenile delinquency, protection from abuse, real estate disputes, eminent domain, unemployment compensation, wage and hour claims, employment discrimination and harassment matters. John is also experienced in forming corporations, drafting wills and powers of attorney and probating estates. 

John serves his clients by truly hearing them, which is often a far too rare skill in our profession as lawyers are known for their talking and not their listening.  One of the greatest services a lawyer can provide to clients is simply to listen to them deeply, with empathy and compassion.  John does that on a daily basis.

Commenting on John's addition to the firm, Managing Partner Jonathan Higie said, "John's experience will allow Peacock Keller to continue to provide our clients with excellent results and exceptional service.  And his ties to the area anchor him in our local community.  We are fortunate that John has decided to join us and we look forward to working with him."

John graduated from Edinboro University of Pennsylvania Summa Cum Laude with an Honors Program Degree.  In 2002, he earned his Juris Doctorate from Duquesne University.  

John and his wife, Amy, are raising their son and daughter in South Franklin Township.

Peacock Keller is excited to have such an experienced, dedicated and thoughtful attorney join our team.  Please join us in welcoming John Egers, Jr. to Peacock Keller.