IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Township of Millcreek, :

:

v. : No. 1725 C.D. 2015

:

Angela Cres Trust of June 25, 1998 :

:

Appeal of: Angela Cres Trust of :

June 25, 1998 and Laurel A. Hirt :

as Trustee of the Angela Cres :

Trust of June 25, 1998 :

Township of Millcreek, :

Appellant :

:

v. : No. 1847 C.D. 2015

: Argued: April 12, 2016

Angela Cres Trust of June 25, 1998 :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION 

BY PRESIDENT JUDGE LEAVITT FILED: June 22, 2016

Millcreek Township (Township) and the Angela Cres Trust of June 

25, 1998 (Trust) have challenged three orders of the Court of Common Pleas of 

Erie County (trial court) awarding the Trust $517,868 in attorney fees and 

expenses and $164,000 in expert fees and expenses that were incurred by the Trust 

in a condemnation proceeding. The Township asserts that the Trust’s request for 

reimbursement of its costs in successfully defending the condemnation was filed 

untimely, depriving the trial court of jurisdiction. The Trust asserts that the trial 
2

court’s award, which was far below what it requested, is unreasonable. We affirm 

the trial court.

Background

In June 2005, the Township filed a declaration of taking of Trust 

property pursuant to the Pennsylvania Eminent Domain Code,1and this was 

followed in January 2006 with an amended declaration of taking. The Township 

initiated its condemnation of Trust land as part of its “Heidler Road Channel 

Improvement Project,” which was undertaken to improve storm water 

management. The Trust filed preliminary objections2to the Township’s amended 

declaration of taking. On December 16, 2009, after a hearing, the trial court 

sustained the Trust’s preliminary objections, concluding that the Township lacked 

authority under The Second Class Township Code3to condemn property for the 

purpose of creating a new water channel. This Court affirmed the decision of the 

trial court. Township of Millcreek v. Angela Cres Trust of June 25, 1998, 25 A.3d 

 

1 Act of June 22, 1964, Special Sess., P.L. 84, as amended, formerly 26 P.S. §§1–101 – 1–903, 

repealed by Section 5 of the Act of May 4, 2006, P.L. 112. In 2006, the Eminent Domain Code 

was consolidated at 26 Pa. C.S. §§101-1106. The trial court and the parties refer to the preconsolidated version of the Eminent Domain Code, which was in effect when the declaration of 

taking of Trust property was filed. For consistency, this opinion also cites to the preconsolidated version of the Eminent Domain Code. Notably, the substantive provisions relevant 

here have not changed; they have simply been reordered and renumbered in the current, 

consolidated version of the Eminent Domain Code.

2

“Preliminary objections in the context of eminent domain actions serve a different purpose than 

preliminary objections filed in other civil actions.” In re Condemnation of .036 Acres, More or 

Less, of Land Owned by Wexford Plaza Associates, 674 A.2d 1204, 1207 (Pa. Cmwlth. 1996) 

(citing North Penn Water Authority v. A Certain Parcel of Land, 650 A.2d 1197 (Pa. Cmwlth. 

1994)). In eminent domain cases, preliminary objections are intended as a procedure to resolve 

expeditiously the factual and legal challenges to a declaration of taking before the parties 

proceed to determine damages. North Penn Water Authority, 650 A.2d at 1201.

3 Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §§65101-68701.
3

1288 (Pa. Cmwlth. 2011), appeal denied, 49 A.3d 444 (Pa. 2012). On August 3, 

2012, four days after the Township’s appeal to the Pennsylvania Supreme Court

was denied, the Township filed a Motion for Leave to File a Second Amended 

Declaration of Taking. It was denied on October 12, 2012. 

One year later, on October 23, 2013, the Trust filed a Petition for 

Fees, Costs and Expenses (“Fee Petition”) seeking reimbursement of the

$3,359,900.33 it had spent to challenge the Township’s condemnation. 

Specifically, the Fee Petition sought $2,278,431.75 for costs incurred in the 

eminent domain proceeding; $822,471.00 for costs incurred in a related 

Environmental Hearing Board proceeding; and $258,997.58 for costs incurred in 

both the eminent domain and Environmental Hearing Board proceedings. 

Reproduced Record at 960a (R.R. ___). On December 3, 2013, the Township filed 

a response that, inter alia, asserted that the trial court lacked jurisdiction because 

the Fee Petition was not timely filed.

While the Fee Petition was pending, on July 7, 2014, the Trust filed a 

Petition for Decree Revesting Title of the Trust land in the Trust. The Township 

did not oppose this petition.4 On July 16, 2014, the trial court granted the petition 

and entered a decree revesting title in the Trust.

Thereafter, on July 30, 2014, the trial court rejected the Township’s 

argument that the Trust’s Fee Petition was untimely filed and scheduled an 

evidentiary hearing to determine the reasonableness of the Trust’s request.

5

 In 

 

4

In its response, the Township noted that its action did not “constitute a waiver of [its] claim that 

the [Fee Petition] is untimely.” R.R. 1598a.

5

The parties engaged in mediation to try to resolve the Fee Petition and several other matters. 

After concluding that mediation had been unsuccessful, the trial court conducted hearings in 

(Footnote continued on the next page . . .)
4

doing so, however, the trial court denied the Trust’s request for recovery of fees 

and costs incurred in the Environmental Hearing Board proceeding.

On September 4, 2014, the Trust filed a Supplemental Petition 

specifying that it sought $649,682.63 for its expert fees. When the Trust filed its 

Fee Petition, it requested recovery of those expert fees, but the total was unknown. 

Following hearings, on December 16, 2014, the trial court awarded

the Trust $517,868 in attorney fees, costs and expenses. On August 19, 2015, 

following additional hearings, the trial court awarded the Trust $164,000 in expert 

witness fees, costs and expenses.

On September 11, 2015, the Trust appealed the trial court’s orders of

July 30, 2014, December 16, 2014, and August 19, 2015. On September 23, 2015, 

the Township cross-appealed.

Township Appeal

The Township argues on appeal6that the trial court lacked jurisdiction 

over the Trust’s Fee Petition. Relying on Section 5505 of the Judicial Code, 42 Pa.

C.S. §5505,

7

the Township contends that the trial court’s jurisdiction to award fees 

and costs did not extend beyond 30 days after the final order, which it argued was 

 

(continued . . .)

2014 and 2015 on the Trust’s request for reimbursement of its costs to engage legal, appraisal 

and engineering services.

6 On November 23, 2015, this Court consolidated the cross-appeals and designated the Township 

as appellant.

7

Section 5505 states: 

Except as otherwise provided or prescribed by law, a court upon notice to the 

parties may modify or rescind any order within 30 days after its entry, 

notwithstanding the prior termination of any term of court, if no appeal from such 

order has been taken or allowed. 

42 Pa. C.S. §5505.
5

the December 16, 2009, order sustaining the Trust’s preliminary objections.

8

 

Because the Fee Petition was filed on October 23, 2013, the trial court lacked 

jurisdiction to act upon the Trust’s Fee Petition. 

In response, the Trust argues that the Eminent Domain Code provides

the complete and exclusive procedure on its Fee Petition, and it places no time 

limit upon a condemnee’s request for recovery of its reasonable fees and expenses 

 

8

In support of its jurisdictional argument, the Township points to this Court’s recent decision in 

Ness v. York Township Board of Commissioners, 123 A.3d 1166 (Pa. Cmwlth. 2015). In that 

case, Ness challenged the validity of an ordinance, which challenge was dismissed on December 

17, 2013. Five months later, the township requested attorney fees, asserting that Ness’ conduct 

had been arbitrary, vexatious and in bad faith. The trial court agreed and ordered Ness to pay the 

township $3,892.70 pursuant to Section 2503(a) of the Judicial Code, 42 Pa. C.S. §2503(a). 

Ness appealed.

Section 2503(a) authorizes the recovery of attorney fees in certain circumstances, such as 

a litigant’s vexatious conduct. Section 2503(a) states:

The following participants shall be entitled to a reasonable counsel fee as 

part of the taxable costs of the matter:

* * *

(9) Any participant who is awarded counsel fees because 

the conduct of another party in commencing the matter or 

otherwise was arbitrary, vexatious or in bad faith.

(10) Any other participant in such circumstances as may be 

specified by statute heretofore or hereafter enacted.

42 Pa. C.S. §2503(a)(9), (10). In Ness, this Court did not reach the question of whether the 

township had been the victim of vexatious conduct because we concluded that the township’s fee 

petition had been untimely filed. In so holding, we relied upon Section 5505 of the Judicial 

Code, which states:

Except as otherwise provided or prescribed by law, a court upon notice to 

the parties may modify or rescind any order within 30 days after its entry, 

notwithstanding the prior termination of any term of court, if no appeal 

from such order has been taken or allowed.

42 Pa. C.S. §5505 (emphasis added). Because the township requested counsel fees on May 22, 

2014, five months after the trial court’s December 17, 2013, order dismissing Ness’ petition, we 

held that the trial court lacked jurisdiction to modify that order.
6

incurred in a condemnation proceeding. In support, it directs our attention to 

McGaffic v. City of New Castle, 973 A.2d 1047 (Pa. Cmwlth. 2009).

9

In reaching its decision, the trial court first examined the two relevant 

provisions of the Eminent Domain Code. Former Section 406 states, in relevant 

part, that where 

preliminary objections are finally sustained, which have the 

effect of finally terminating the condemnation, the condemnee 

shall be entitled to damages as if the condemnation had been 

revoked under section 408, to be assessed as therein provided. 

26 P.S. §1-406(e) (repealed).

10

 In turn, former Section 408 provides that

 

9

In McGaffic, this Court considered when the statute of limitations for breach of contract 

accrued against the city, which had assumed, by contract, the liabilities of a condemnor, the 

redevelopment authority. This Court explained that in a de facto taking, damages included

attorney fees and reimbursement for costs and expenses of litigation through trial. Further, delay 

damages up to the date of payment of the award were recoverable, and those damages could only 

be ascertained at the end of the eminent domain proceedings. Thus, the plaintiffs’ breach of 

contract suit against the city accrued, and the four-year statute of limitations began to run, when 

they had notice of the specific damages amount at the end of their de facto taking litigation. 

McGaffic is inapplicable because it did not address the time limit, if any, for seeking 

reimbursement of costs under the Eminent Domain Code.

10 Former Section 406 of the Eminent Domain Code states, in full, as follows:

(a) Within thirty days after being served with notice of condemnation, the 

condemnee may file preliminary objections to the declaration of taking. The court 

upon cause shown may extend the time for filing preliminary objections. 

Preliminary objections shall be limited to and shall be the exclusive method of 

challenging (1) the power or right of the condemnor to appropriate the condemned 

property unless the same has been previously adjudicated; (2) the sufficiency of 

the security; (3) any other procedure followed by the condemnor; or (4) the 

declaration of taking. Failure to raise these matters by preliminary objections shall 

constitute a waiver thereof.

(b) Preliminary objections shall state specifically the grounds relied upon.

(c) All preliminary objections shall be raised at one time and in one pleading. 

They may be inconsistent.

(Footnote continued on the next page . . .)
7

the condemnee shall be reimbursed by the condemnor for 

reasonable appraisal, attorney and engineering fees and other 

costs and expenses actually incurred because of the 

condemnation proceedings. Such damages shall be assessed by 

the court, or the court may refer the matter to viewers to 

ascertain and assess the damages sustained by the condemnee, 

which award shall be subject to appeal as provided in this 

act....

26 P.S. §1-408 (repealed) (emphasis added in part and omitted in part).

11

 Neither

former Section 406 nor former Section 408 of the Eminent Domain Code 

establishes a deadline for the condemnee’s request for reimbursement of attorney 

and expert fees and costs.

The trial court also reasoned that the condemnation proceeding had 

not yet concluded when the Trust filed its Fee Petition because the Township still 

held title to the Trust property.12 When the trial court ordered title revested in the 

 

(continued . . .)

(d) The condemnee shall serve a copy of the preliminary objections on the 

condemnor within seventy-two hours after filing the same.

(e) The court shall determine promptly all preliminary objections and make 

such preliminary and final orders and decrees as justice shall require, including 

the revesting of title. If preliminary objections are finally sustained, which have 

the effect of finally terminating the condemnation, the condemnee shall be 

entitled to damages as if the condemnation had been revoked under section 408, 

to be assessed as therein provided. If an issue of fact is raised, the court shall take 

evidence by depositions or otherwise. The court may allow amendment or direct 

the filing of a more specific declaration of taking.

26 P.S. §1-406 (repealed) (emphasis added). The above provision is now at 26 Pa. C.S. §306.

11 This language is now codified at 26 Pa. C.S. §306.

12 When a declaration of taking is filed in court, title passes to the condemnor on the date of such 

filing. Former Section 402 of the Eminent Domain Code, 26 P.S. §1-402 (repealed; now 

codified at 26 Pa. C.S. §302). The condemnor, upon filing its declaration of taking, shall record 

notice thereof in the office of the recorder of deeds of the county in which the property is 

located. Former Section 404 of the Eminent Domain Code, 26 P.S. §1-404 (repealed; now 

codified at 26 Pa. C.S. §304). The notice shall be indexed in the deed indices showing the 

(Footnote continued on the next page . . .)
8

Trust on July 16, 2014, the Township did not challenge the court’s jurisdiction to 

enter that order. Accordingly, assuming that Section 5505 of the Judicial Code 

applied to an eminent domain proceeding, the Trust’s Fee Petition was filed before 

the trial court’s final order of July 16, 2014. Thus, the trial court concluded that 

the Trust satisfied the 30-day deadline in Section 5505.

The Township contends that the trial court erred in two ways. First, 

the trial court misread the Judicial Code. Section 2503(10) expressly applies to a 

“reasonable counsel fee as part of the taxable cost ... as may be specified by statute 

heretofore or hereafter enacted.” 42 Pa. C.S. §2503(10). It argues that the

Eminent Domain Code is such a statute. Second, the trial court’s order of July 16, 

2014, simply corrected an error. As such, it cannot be treated as the final order in 

the eminent domain proceeding. We reject the Township’s argument.

First, Section 102(a) of the Eminent Domain Code states that it is the 

“complete and exclusive procedure and law” to be followed in condemnation 

proceedings. 26 Pa. C.S. §102(a).

13

 This leaves no room for the other “procedure

 

(continued . . .)

condemnee as the grantor and the condemnor as the grantee. Id. After the preliminary 

objections were granted, title did not automatically revest in the Trust. On July 16, 2014, the 

trial court entered an order revesting title in the Trust.

13 Former Section 303 of the Code similarly provided:

It is intended by this act to provide a complete and exclusive procedure and law to 

govern all condemnations of property for public purposes and the assessment of damages 

therefor, except as provided in section 901: Provided, however, That nothing in this act 

shall be deemed to affect, vary, alter or modify the jurisdiction or power of the Public 

Utility Commission of the Commonwealth of Pennsylvania, the State Mining 

Commission created under the act of June 1, 1933 (P.L. 1409), as reenacted and 

amended, or any act providing for the assessment of benefits for public improvements on 

the properties benefited. This act is not intended to enlarge or diminish the power of 

condemnation given by law to any condemnor.

26 P.S. §1-303 (repealed) (emphasis added). 
9

and law” set forth in Section 2503(10) of the Judicial Code. See In re Right of Way 

for Legislative Route 1040 v. Pikur Enterprises, Inc., 596 A.2d 1253, 1260 (Pa. 

Cmwlth. 1991) (stating that this Court “has continually determined that causes of 

action, rules of procedure and pleadings which try to circumvent the [Eminent 

Domain] Code are improper.”). Recovery of condemnation costs is not done by 

modification of the order granting just compensation or sustaining preliminary 

objections. It is a separate order. Section 5505 of the Judicial Code governs fee 

awards that are entered by modification of the final order in the case.

Second, Section 5505 of the Judicial Code states that its 30-day time 

limit applies “except as otherwise provided or prescribed by law.” 42 Pa. C.S. 

§5505. It is “otherwise provided” in the Eminent Domain Code, which makes its 

procedures “exclusive” and places no specific time limit upon a condemnee’s 

request for fees incurred in defeating the condemnation. 26 Pa. C.S. §102. 

Third, the type of costs that can be recovered under Section 2503(10)

of the Judicial Code does not match those that can be recovered under former 

Section 408 of the Eminent Domain Code. Section 2503(10) of the Judicial Code 

speaks only to “counsel” fees. By contrast, former Section 408 of the Eminent 

Domain Code authorizes reimbursement “for reasonable appraisal, attorney and 

engineering fees and expenses actually incurred because of the condemnation 

proceedings.” 26 P.S. §1-408 (repealed; now codified at 26 Pa. C.S. §306)

(emphasis added). This lack of symmetry between the Judicial Code and the 

Eminent Domain Code makes Section 5505 of the Judicial Code irrelevant to fee 

petitions filed under the Eminent Domain Code. 

In any case, we discern no error in the trial court’s holding that the 

final order in the eminent domain proceeding was its July 16, 2014, order that the 
10

deed, held by the Township, revest in the Trust.14 Further, the Township’s own 

actions are inconsistent with its argument that the eminent domain proceeding 

ended on December 16, 2009, because in August 2012, the Township sought leave 

to file a Second Amended Declaration of Taking. This filing cannot be reconciled 

with the Township’s position here that the trial court lacked jurisdiction as of 

January 15, 2010. 

We affirm the trial court’s order of July 30, 2014, holding that it had 

jurisdiction over the Trust’s Fee Petition. 

Trust Cross-Appeal

We turn to the Trust’s cross-appeal, which asserts that the trial court 

erred by not awarding it the full amount of fees, costs and expenses that it incurred

in defeating the Township’s condemnation.

15

 The trial court held that the Trust did 

not prove that its request for $3,359,900.33 in attorney fees, costs, and expenses

was reasonable. Instead, the trial court awarded the Trust $517,868 as reasonable 

reimbursement for its attorney fees and $164,000 for the Trust’s engineeringrelated fees and costs. 

 

14 The Township argues that the trial court wrongly relied upon former Section 408 to find

jurisdiction and missed the distinction between “relinquishment” and “revesting” under the 

Eminent Domain Code. According to the Township, there was no relinquishment in this case;

rather, there was vesting of title under former Section 406(e). Accordingly, the trial court erred 

in characterizing the issue before it as a “relinquishment.” The Trust sought reimbursement of 

costs under former Sections 406 and 408 of the Eminent Domain Code. The trial court examined

these provisions for a deadline and found none. The trial court’s use of the word 

“relinquishment,” as opposed to “revested,” is simply irrelevant.

15 This Court’s review in eminent domain cases is limited to determining whether the trial court 

abused its discretion or committed an error of law. Harborcreek Township v. Ring, 570 A.2d 

1367, 1370 (Pa. Cmwlth. 1990).
11

We begin with a review of the legal principles applicable to a request 

for fees filed under the Eminent Domain Code. Former Section 408 of the 

Eminent Domain Code authorizes the recovery of costs incurred “because of the 

condemnation proceedings.” 26 P.S. §1-408 (repealed; now codified at 26 Pa. C.S. 

§306). This Court has explained that this statutory recovery is “not included or 

embraced within just compensation for land taken for eminent domain purposes”

but is a separate recovery. In re: Condemnation by the Commonwealth, 

Department of Transportation, of Right of Way for Legislative Route 1021, Section 

1B, a Limited Access Highway, in the City of Pittsburgh, 709 A.2d 939, 943 (Pa. 

Cmwlth. 1998). Further, the statute does not require that a condemnee be made 

whole; rather, recovery is limited to reasonable attorney and expert fees and costs. 

Id. at 944. The reasonableness of an award is a matter committed to the sound 

discretion of the trial court and can be disturbed by an appellate court only upon a 

clear abuse of discretion. Matter of Condemnation by Urban Redevelopment 

Authority of Pittsburgh of Certain Lands in the Twenty-First Ward of the City of 

Pittsburgh v. Kristoff, 451 A.2d 1071, 1072-73 (Pa. Cmwlth. 1982). The trial 

court’s judgment comes to us with a presumption of correctness. Id. at 1073

(citing In re Baughman’s Estate, 126 A. 58 (Pa. 1924)). 

With respect to the grant of attorney fees, our Supreme Court has 

identified the specific factors to be considered by the trial court:

[T]he amount of work performed; the character of the services 

rendered; the difficulty of the problems involved; the 

importance of the litigation; the amount of money or value of 

the property in question; the degree of responsibility incurred; 

whether the fund involved was ‘created’ by the attorney; the 

professional skill and standing of the attorney in his profession; 

the results he was able to obtain; the ability of the client to pay 

a reasonable fee for the services rendered; and, very 
12

importantly, the amount of money or the value of property in 

question.

In re LaRocca’s Trust Estate, 246 A.2d 337, 339 (Pa. 1968). Deference must be 

afforded to the trial court’s decision when it applies the LaRocca factors: 

[The trial court’s] opportunities of judging the exact amount of 

labor, skill and responsibility involved, as well as its knowledge 

of the rate of professional compensation usual at the time and 

place, are necessarily greater than ours, and its judgment 

should not be interfered with except for plain error.... [T]he 

allowance or disallowance of counsel fees rests generally in the 

judgment of the court of first instance and its decision will not 

be interfered with except for palpable error.

Id. at 340 (internal quotation marks and citations omitted) (emphasis added). 

In support of its request for legal fees, the Trust offered the testimony 

of William P. Bresnahan16 and James T. Marnen.

17

 Bresnahan explained that he 

did not review each individual time entry. Rather, he looked at a category of legal 

activity; if the amount charged and time involved seemed reasonable, he accepted

it. Marnen likewise testified that he did not look at each invoice or assess the time 

or activity recorded by each of the persons on the invoices. Instead, he based his 

conclusions on a broad review. 

In opposition, the Township offered the testimony of Arthur H. 

Stroyd, Jr., who has extensive experience in reviewing legal billing practices. He 

has trained young lawyers in proper billing practices; reviewed outside counsel 

bills; and served as Special Master for the U.S. District Court for the Western 

District of Pennsylvania in Erie, where he was responsible for assisting the court in 

 

16 Bresnahan is an attorney at the law firm Hollinshead, Mendelson, Bresnahan & Nixon, P.C., 

whose practice focuses on Eminent Domain cases. R.R. 2513a.

17 Marnen is a retired attorney who specialized in complex, commercial litigation. Notes of 

Testimony (N.T.), 10/28/2014, 79-81; R.R. 2058a-60a.
13

resolving a significant fee dispute. Stroyd reviewed each time entry made by the 

Trust’s attorneys. He observed that more than $280,000 of the Trust’s attorney

fees was expended on other cases and that almost all of the Trust’s entries were 

block billed. Accordingly, he could not assess the reasonableness of each

particular entry. He did opine there were more lawyers and hours spent on this 

case than was reasonable. 

The trial court found the testimony of Stroyd, the Township’s expert,

to be “considerably more compelling than that of either [of the experts] who 

testified on behalf of the Trust.” Trial Court op., 12/16/2014, at 32.18 The trial 

court found that “Mr. Stroyd meticulously reviewed the time and billing records 

involved in the case, scrutinized each entry and methodically evaluated the 

appropriateness of the fees being charged.” Id. at 34. Stroyd identified those 

attorney fees that were not related to the condemnation or were excessive. Stroyd 

also identified excessive charges for travel, photocopying and over-staffing. For 

example, six lawyers and a paralegal charged $33,000 to attend a meeting that

may, or may not, have been about the condemnation, as opposed to one of the 

other litigation matters. Accordingly, the trial court credited Stroyd’s testimony. 

The trial court rejected the opinions of the Trust’s experts that all 

attorney fees charged were reasonable. It found these opinions conclusory, at best, 

because they were not based upon a line-by-line analysis of time entries, as was 

Stroyd’s analysis.

 

18 On December 16, 2014, after three days of testimony and the receipt of numerous exhibits 

totaling several thousand pages, the trial court issued a 46-page opinion and order. The trial 

court made 47 findings of fact. 
14

Given the deficiencies in the Trust’s case on legal fees, the trial court 

“settle[d] on an outcome that reflect[ed] a reasonable degree of proportionality” 

after it weighed “all the relevant factors” and considered “the limitations in the 

evidentiary record.” Id. at 44. The trial court acknowledged that the Trust’s legal 

team had done outstanding work and that the Trust was entitled to reasonable 

reimbursement. To develop a reasonable fee award, the trial court began with the

Township expenditure of $258,934 on attorney fees, which the trial court found 

reasonable. The court then doubled that amount to account for the vigorous and 

successful efforts of the Trust’s attorneys. Id. at 44-45. This methodology 

produced $517,868, which the trial court awarded the Trust as fair and reasonable. 

Thereafter, on August 19, 2015, after several days of hearings, the 

trial court issued a 34-page opinion and order that awarded the Trust $164,000 for 

its expert fees, costs, and expenses incurred in defeating the condemnation. The 

trial court reduced the Trust’s request for $649,682.63 by two-thirds.19 In its 

opinion, the trial court explained that the reduction was done to account for

the duplication and redundancy of effort, the applicability of the 

work to other lawsuits, and the limited role played in the 

outcome by most of the work, as well as the character of the 

work performed and the responsibility shouldered.

Trial Court op., 8/19/2015, at 32-33. Concluding that the Trust was “entitled to an 

amount that reflects both the practical and equitable considerations that underlie 

the LaRocca rationale,” the trial court awarded $164,000. Id. 

 

19 One of the Trust’s experts, Christopher M. Hager, estimated the expert fees and costs spent by 

the Township from 1998 through 2012 to be $310,462.27. N.T., 5/27/2015, at 148; R.R. 7020a.
15

On appeal, the Trust challenges the amounts of the trial court’s award. 

Specifically, it raises the following issues:

(1) The trial court erred in excluding Environmental Hearing 

Board Fees, Costs and Expenses from the Trust’s award;

(2) The trial court erred in reducing fees, costs and expenses 

for legal and expert services in the condemnation case because 

they were of potential use in other litigation;

(3) The trial court erred in its consideration and application of 

the LaRocca factors;

(4) The trial court erred in applying a “proportionality” 

standard to reduce the Trust’s award;

(5) The trial court erred by failing to identify specific findings 

as a basis for calculating its award;

(6) The trial court erred by failing to consider the diminution 

in the value of the Trust’s property resulting from the 

condemnation;

(7) The trial court erred in finding that the amount of time 

billed by the Trust’s attorneys and experts was unreasonable;

(8) The trial court erred in finding that the Trust’s retention of 

Philadelphia counsel was unnecessary and that Philadelphia 

counsel’s bill rates were not “normative”; 

(9) The trial court erred by reducing the Trust’s fees based on 

paralegal rates; and

(10) The trial court erred by reducing the Trust’s award due to 

the use of block billing.

Trust’s Brief at pp. ii-iii. We address these issues seriatim.

In its first issue, the Trust argues that the trial court erred in excluding

the costs incurred by the Trust in the proceedings before the Environmental 

Hearing Board that challenged the project permit sought by the Township. The 
16

Trust argues that former Section 408 of the Eminent Domain Code allows

condemnees to recover costs and expenses incurred “because of the condemnation

proceedings.” 26 P.S. §1-408 (repealed; now codified at 26 Pa. C.S. §306). It 

contends that its participation in the environmental proceeding was directly caused 

by the Township’s declaration of taking. The Township rejects this reading of 

former Section 408 as overbroad.

The trial court held that the condemnation of the Trust property bore

no relationship to the grant of a permit by the Department of Environmental 

Protection (DEP). Trial Court op., 7/30/2014, at 6. As the trial court explained, “if 

a township were to fail to obtain a permit pursuant to 53 [P.S.] §66513,[20]it does 

not necessarily follow that condemned property would be relinquished under the 

Eminent Domain [C]ode.” Id. The Township would simply seek an alternate 

permit and address the relevant concerns, as it did when DEP denied its first permit 

in January 2000. Intervening in the permit process was ancillary to the Trust’s 

objections to the condemnation, which involved only a small part of the Heidler 

Road Channel Improvement Project. The trial court also noted that the Trust 

sought an award of its attorney fees and costs under the Clean Streams Law21 for 

its success in the Environmental Hearing Board proceeding. This further 

supported the trial court’s conclusion that the two proceedings were separate. 

In its request for an award of fees under the Clean Streams Law, the 

Trust argued that it was entitled to fees “because it was the substantially prevailing 

party who successfully appealed this matter, resulting in the suspension of the 

 

20 Section 1513 of The Second Class Township Code, added by the Act of November 9, 1995, 

P.L. 350.

21 Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. §§691.1-691.1001.
17

Permit, ultimately leading to the termination of the Permit.” R.R. 7693a. The 

Trust stated that the “Clean Streams Law [wa]s the core statute providing the legal 

authority for the Permit and is certainly the primary statute involved” and that it

incurred attorney fees and costs in a nearly seven-year proceeding “based upon the 

legality of actions under the Clean Streams Law.” R.R. 7731a-7732a. 

By contrast, in its preliminary objections to the Township’s 

declaration of taking, the Trust argued that the Township lacked authority to 

condemn under The Second Class Township Code; failed to comply with state and 

federal law; and acted arbitrarily and capriciously. Ultimately, the Trust prevailed 

because The Second Class Township Code did not authorize the Township to 

create a new channel, as called for in the Heidler Road Channel Improvement 

Project, but only to “widen and deepen watercourses.” Township of Millcreek v. 

Angela Cres Trust of June 25, 1998, 25 A.3d 1288, 1291 (Pa. Cmwlth. 2011), 

appeal denied, 49 A.3d 444 (Pa. 2012). Likewise, the Township’s “project would 

construct a new system or facility for collecting surface water runoff, not improve 

an existing system, as authorized by Section 2702 [of The Second Class Township 

Code, 53 P.S. §67702, added by the Act of November 9, 1995, P.L. 350].” Id.

We agree with the trial court that the Environmental Hearing Board

proceeding was completely separate from the condemnation proceeding. Even had 

the Township’s project been permitted by DEP, it did not necessarily follow that 

the Trust property would have been condemned. The project may have been 

configured differently in the course of DEP’s review. A condemnation may lead to 

different sorts of ancillary litigation, but the language of former Section 408 of the

Eminent Domain Code is limited to those costs incurred “because of the 

condemnation proceedings.” 26 P.S. §1-408 (repealed; now codified at 26 Pa. C.S. 
18

§306). In short, the trial court did not err in denying the Trust’s request for costs 

incurred in the Environmental Hearing Board proceeding.

In its second assertion of error, the Trust contends that the trial court 

erred in denying its request for its costs that advanced related litigation. That 

litigation included: (1) a lawsuit against the Township for violations of various 

Pennsylvania storm water management statutes; (2) a professional negligence 

action against Hill Engineering for designing a flawed storm water management

system on Heidler Road; (3) an action against Millcreek School District for 

discharge of storm water onto the Trust property; and (4) an action against the 

Township for violating the Sunshine Act.

22

 Trust’s Brief at 34. The trial court

found that this other litigation resulted in “more than $280,000 in attorney fees for 

time expended on cases other than this case contrary to what was attested to in 

support of the fee petition.” Trial Court op., 12/16/2014, at 23.

The Eminent Domain Code does not entitle a condemnee to recover 

all fees, costs and expenses incurred in fighting a condemnation. Former Section 

408 authorizes reimbursement of those costs “actually incurred because of the 

condemnation proceedings.” 26 P.S. §1-408 (repealed; now codified at 26 Pa. C.S. 

§306). As this Court has explained, condemnees are

entitled only to those costs and expenses actually incurred by 

them due to the [] condemnation. They [are] not entitled to an 

award for speculative damages, loss or injury or for any other 

category of damages not expressly provided by statute.

In re Condemnation by the Commonwealth of Pennsylvania, 709 A.2d at 944

(emphasis added). The trial court did not err in excluding the Trust’s request for

 

22 65 Pa. C.S. §§701-716.
19

costs and expenses attributed to litigation that was separate from the condemnation 

action, albeit motivated by the condemnation.

In its third issue, the Trust argues that the trial court erred in its 

application of the principles established in LaRocca, 246 A.2d at 337, to evaluate

the reasonableness of attorney fees in a condemnation case. This produced error; 

for example, the trial court improperly considered the Trustee’s ability to pay her

attorneys what they charged. 

Our courts have used the LaRocca factors when fashioning a fair and 

reasonable award of attorney fees in condemnation actions. See, e.g., In re 

Condemnation by Redevelopment Authority of Lawrence County, (Pa. Cmwlth., 

Nos. 2774 C.D. 2010, 2775 C.D. 2010, 41 C.D. 2011, 90 C.D. 2011, filed February 

22, 2013), slip op. at 15 (citing LaRocca, 246 A.2d at 337);

23 In re Condemnation 

by Urban Redevelopment Authority, 452 A.2d 1113 (Pa. Cmwlth. 1982)). 

Accordingly, it was appropriate for the trial court to use the LaRocca factors to 

evaluate the Trust’s request for attorney fees. Under LaRocca, the court should

consider “the difficulty of the problems involved[;] ... the ability of the client to 

pay a reasonable fee for the services rendered; and, very importantly, the amount 

of money or the value of property in question.” LaRocca, 246 A.2d at 339. There 

is no merit to the Trust’s third assignment of error.

In its fourth issue, the Trust argues that the trial court’s methodology 

for setting the award for attorney fees lacked a foundation. It contends that the 

assessment of “attorney’s fees should be based on the efforts within the case” and 

nothing else. Harborcreek Township v. Ring, 570 A.2d 1367, 1372 (Pa. Cmwlth. 

 

23

 Although an unreported opinion cannot be cited as binding precedent, we cite Lawrence 

County for its persuasive value. See 210 Pa. Code §69.414(a).
20

1990) (citing Benkovitz Appeal, 452 A.2d 1113 (Pa. Cmwlth. 1982)). In its 

exhaustive opinion, the trial court explained that it chose its methodology because 

“the Trust has failed to prove the reasonableness of the fees, costs and expenses it 

paid to its attorneys.” Trial Court op., 12/16/2014, at 43. In that vacuum, the trial 

court looked to the Township’s costs for legal representation, which the trial court 

found reasonable, and then doubled that amount to arrive at a fair and reasonable 

award to the Trust. We cannot say this was “palpable error,” given the trial court’s 

finding that the Trust did not prove the reasonableness of its request. LaRocca, 

246 A.2d at 340.

In its fifth issue, the Trust contends that because it is not clear how the 

trial court arrived at the amount of fees, costs, and expenses it awarded to the 

Trust, it must be reversed.24 The trial court made numerous findings about the 

excessiveness of the Trust’s request, to wit: 

The number of billable hours expended by the [Trust’s

attorneys] was exceedingly high.... An unusually large amount

of time attributable to group meetings was billed to the Trust, 

without sufficient justification in the record.... In October 

2009 Ms. Hirt [the trustee of the Trust] paid another $33,000.00 

for a meeting attended by six lawyers and one paralegal. At 

that time of the October meeting there were no scheduled legal 

proceedings in this case until December and briefing on 

pending motions had been completed. With regard to those 

meetings, three (3) attorneys billed over fourteen (14) hours 

each per day.... An excessive amount, more than $45,000, was 

spent on travel.... The amount requested for costs includes 

more than $70,000 for making copies.

 

24 The Trust argues that the trial court must do a line-by-line excision of those fees that were 

compensable. The trial court noted, however, that the Trust’s own experts did not undertake this 

effort. Trial Court op., 12/16/2014, at 32-33.
21

Trial Court op., 12/16/2014, at 21-23. There is no requirement that a trial court do 

a line-by-line analysis of a legal invoice to determine its reasonableness. See In re 

Appeal of Silverman, 90 A.3d 771, 785 (Pa. Cmwlth. 2014) (“[W]e hold that the 

[trial court] was not required to delineate with specificity to Counsel’s satisfaction 

every reason for every disallowance of every aspect of the fee request. Instead, it 

is sufficient that the [trial court] explain its decision in a manner sufficient for 

appellate review.”). Here, the trial court presented, in clear terms, how it arrived at 

a reasonable attorney fee award.

Regarding the award for the costs of engineering studies and reports, 

the trial court explained that it found neither the Trust’s experts nor the Township’s 

experts persuasive on what constituted a reasonable award of costs. The Trust 

presented the testimony of three expert witnesses, Paul White, Gregory C. Newell, 

and Christopher M. Hager, to testify regarding the work of the Trust’s experts and 

the reasonableness of their fees. In opposition, the Township presented the 

testimony of two experts: Clayton Fails and Jeffrey Wright. Fails testified about

the worked performed by Hill Engineering, the Township’s engineering firm;

Wright testified regarding the fees charged by the Trust’s engineering experts, 

Cahill, Newell and Brickhouse, and described their fees as “significantly 

unreasonable.” N.T., 5/27/2015, at 68-93 and N.T., 5/28/2015, at 8; R.R. 6019a44a, 6209a. 

The trial court found that the question was not whether the engineers

did their job or whether the amount they charged fell within professional standards; 

rather, the question was whether the services were required given the nature of the 

litigation. What was lacking was “an analysis from a technical perspective, of the 

role played by the Trust’s experts in the outcome of the condemnation case,” 
22

which the trial court noted “could have been helpful.” Trial Court op., 8/19/2015,

at 19. The trial court reduced the amount requested for the engineers’ work

because much of their work applied “to other lawsuits” and played a limited role in 

the outcome of the condemnation case. Id. at 32. Stated otherwise, the trial court 

did not challenge the professional quality of the work of the engineers or find that 

their charges were excessive. They were, however, largely irrelevant to the 

outcome in the condemnation. Again, we cannot say that the trial court abused its 

discretion in this regard.

The Trust argues the LaRocca factors have no application to an award 

for engineering and geology fees. It contends that because all of its engineering

costs were reasonable, it should be reimbursed for all of those costs. First, this 

argument overlooks the trial court’s observation that the “reasonableness” opinion 

offered by the Trust’s experts was conclusory and somewhat subjective. Second, 

the LaRocca factors, although developed for an evaluation of professional legal 

services, are suitable for a review of the reasonableness of other professional 

services, i.e., appraisal and engineering services. LaRocca provides a sensible

approach to an evaluation of the reasonableness of any professional’s fees. We 

reject the Trust’s argument to the contrary.

In its sixth issue, the Trust argues that the trial court failed to consider 

how the condemnation would have diminished the value of the Trust’s property as 

a whole, even though the taking involved .618 acres valued at $9,000. This might 

be compelling in a case where the condemnation was done for the purpose of 

constructing, for example, a high-voltage transmission line or an unsightly cell 

tower that would affect the value of surrounding property. That was not the case 

here. Further, it is unlikely that a different approach on a single LaRocca factor 
23

would have produced a materially different fee award. Again, we do not see a 

palpable error. 

In its seventh issue, the Trust contends that the trial court erred in 

finding that the amount of time billed by the Trust’s attorneys and experts was 

unreasonable. The trial court set forth its reasons for this finding:

a. Excessive group meetings totaling $234,401[] in attorney 

fees.

b. A majority of work carried out by firm partners who 

commanded the highest fees.

c. Pervasive duplication of effort, including such activities as 

redundant document and pleading reviews, lawyer to

lawyer consultations and meetings, with multiple attorneys 

and paralegals involved in the same matters without any 

justification in the record.

d. Numerous time entries [that] were generalized and vague.

e. A substantial amount of time for which the activity was 

redacted.

f. Charges of more than $40,000 to the Trust for time 

expended on administrative tasks such as organizing file 

boxes, creating document indexes and obtaining copies of 

documents.

Trial Court op., 12/16/2014, at 23-24. The Eminent Domain Code does not require 

that the condemnee be made whole. In re: Condemnation by the Commonwealth, 

Department of Transportation, 709 A.2d at 944. We must give deference to the 

trial court’s factual findings and judgment. LaRocca, 246 A.2d at 340. In short, 

we conclude that the Trust’s argument lacks merit.

In its eighth issue, the Trust contends that the trial court improperly 

reduced its reimbursement because the Trust engaged a Philadelphia law firm to 
24

represent it. However, the trial court stated that it did not “challenge ... Ms. Hirt’s 

right to secure legal counsel of her choosing....” Trial Court op., 12/16/2014, at 

25. Rather, the trial court explained:

Other than pointing to the outcome and blaming [the Township] 

for its vigorous defense of the Trust’s claims the record is 

essentially silent as to any explanation why it was necessary and 

therefore, reasonable to hire two separate law firms and have an 

extraordinary number of attorneys and others involved on an 

ongoing basis in a condemnation case of this nature.... In 

general the Trust has failed to prove the reasonableness of the 

fees, costs and expenses it paid to its attorneys. 

Id. at 43 (emphasis added). It was the number of attorneys, not their hometowns, 

that gave the trial court pause. 

Regarding the billing rates of Philadelphia counsel, the trial court 

noted that, “[w]ith the exception of the Trust’s own expert witness there is nothing 

in the record to indicate what other practitioners in eminent domain cases outside 

the Erie and Philadelphia areas charge for such work.” Trial Court op., 

12/16/2014, at 19. The choice of counsel belonged to the Trust. The problem was 

that the Trust’s fee expert did not give “any serious consideration to the ability of 

the Trust to shoulder the costs of its legal fees and expenses, a factor specifically 

identified in Pennsylvania law as an important consideration.” Id. at 33. Nor did 

the Trust show that only the proverbial Philadelphia lawyer had the expertise to 

represent the Trust. 

The trial court was present at the hearing and able to evaluate the 

performance of all the attorneys. This is why our Supreme Court has directed that 

we give great deference to the findings of the trial court. LaRocca, 246 A.2d at 

340. We reject the Trust’s contrary contention on this issue. 
25

In its ninth issue, the Trust contends that the trial court’s reduction of 

the paralegal’s billing rate was against the clear weight of the evidence, arbitrary 

and erroneous. The Trust provided testimony that the paralegal performed at the 

level of an experienced associate attorney and that her billing rate was within the 

range of paralegal rates charged in northwest Pennsylvania. In response, the 

Township provided testimony and an affidavit that the hourly rates charged for 

these paralegal services were outside the normative rates charged in northwest 

Pennsylvania. The trial court decided to credit the Township’s evidence, which is 

the prerogative of the fact finder. We reject this assignment of error.

In its final issue, the Trust challenges the trial court’s reduction of the 

Trust’s fee award because its counsel used “block billing.” The Township’s 

expert, Stroyd, explained that “most of the entries were block billed, so that to take 

a look and to determine how much time [was] spent on that matter as opposed to 

the other matters that are listed, is impossible.” N.T., 10/29/2014, at 160; R.R. 

2380a. The trial court found that “[i]n the absence of explanatory testimony, the 

use of block billing precludes an objectively accurate determination of the 

reasonableness of time expended on particular tasks or the necessity of a particular 

attorney related activity.” Trial Court op., 12/16/2014, at 21. The trial court’s 

decision not to accept “block billing” did not constitute an abuse of discretion.

Conclusion

We reject the Township’s appeal that the Trust’s Fee Petition was 

untimely filed. A condemnee’s recovery of attorney and expert fees is governed 

solely by the Eminent Domain Code, and it does not set forth a deadline for 

seeking recovery.
26

We reject the Trust’s appeal of the amount of the award. The Trust 

decided to pursue any and all avenues of redress to prevent the Township from 

pursuing the Heidler Road Channel Improvement Project, but only one involved

the actual condemnation. The Trust used the professional services of several law 

firms and multiple technical experts. The Trust is entitled to pursue all means at 

any cost to preserve its property, but it does not follow that all those fees, costs and 

expenses were reasonable. The trial court’s findings support its decision; thus, we 

will not interfere with the trial court’s award. 

For the above-stated reasons, we affirm the decision of the trial court.

 _____________________________________

 MARY HANNAH LEAVITT, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Township of Millcreek, :

:

v. : No. 1725 C.D. 2015

:

Angela Cres Trust of June 25, 1998 :

:

Appeal of: Angela Cres Trust of :

June 25, 1998 and Laurel A. Hirt :

as Trustee of the Angela Cres :

Trust of June 25, 1998 :

Township of Millcreek, :

Appellant :

:

v. : No. 1847 C.D. 2015

:

Angela Cres Trust of June 25, 1998 : 

O R D E R

AND NOW, this 22nd day of June, 2016, the order of the Court of 

Common Pleas of Erie County dated August 19, 2015, in the above-captioned 

matter is AFFIRMED.

 _____________________________________

 MARY HANNAH LEAVITT, President Judge