IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gary D. Wolfe and Mary O. :

Wolfe, husband and wife :

:

v. :

:

Reading Blue Mountain and :

Northern Railroad Company, : No. 649 C.D. 2022

Appellant :

:

In re: Condemnation of Lands of :

Gary D. Wolfe and Mary O. Wolfe :

Pottsville Pike, Muhlenberg Township :

:

Appeal of: Reading Blue Mountain : No. 722 C.D. 2022

and Northern Railroad Company : Submitted: September 23, 2022

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: November 14, 2022

Reading Blue Mountain and Northern Railroad Company (RBMN)

appeals from the Berks County Common Pleas Court’s (trial court) June 8, 2022 

order sustaining Gary D. Wolfe and Mary O. Wolfe’s (collectively, Wolfes)

preliminary objections (Preliminary Objections) to RBMN’s Amended Declaration 

of Taking (Declaration). RBMN presents five issues for this Court’s review: 

whether the trial court erred by: (1) finding that RBMN did not take the Wolfes’ 

property for a public purpose; (2) finding that RBMN effected a de facto taking of 

the subject property and another Wolfes-owned property; (3) finding that RBMN’s 

taking was in bad faith; (4) dismissing RBMN’s Declaration rather than ordering 
2

RBMN to post sufficient security, where RBMN presented testimony regarding its 

line-of-credit as evidence of sufficient security; and (5) striking RBMN’s 

Declaration, ordering revesting of the subject property’s title to the Wolfes, and 

permitting the Wolfes to petition for counsel fees. After review, this Court reverses

and remands.

On April 27, 2022, RBMN filed the Declaration, seeking to condemn a

0.0889-acre portion of the Wolfes’ property located at 3901 Pottsville Pike, 

Muhlenberg Township, Pennsylvania (3901 Property). The Wolfes also own the 

adjoining property at 3907 Pottsville Pike (3907 Property) (collectively, Properties), 

at which their tenant, Wolfe Roofing A Tecta America Company, operates a 

commercial roofing company it purchased from the Wolfes. The Wolfes acquired 

both Properties by deed in 1982 from L.H. Focht & Sons, Inc. 

In the early twentieth century, the Reading Company owned a portion 

of the Wolfes’ Properties. At that time, a portion of the 3901 Property was part of a 

larger parcel of land that the Reading Company conveyed by deed in 1928 to G.W. 

Focht Stone Company (1928 Deed). The Reading Company operated a railroad and,

as described in the 1928 Deed, the property had rail siding1running onto it.

The 1928 Deed contained two easements in favor of the Reading 

Company. The first easement is not at issue in this appeal. The second easement

was for siding already existing on the property, but the easement required that the

grantor and its successors would have to remove the siding within 90 days of demand 

by the grantee and its successors, the Wolfes. The existing siding was connected to 

the main railroad line by a single track that crossed State Route (SR) 61 (Crossing). 

The subject siding was on the 3901 Property when the Wolfes acquired it in 1982, 

1

“Rail siding is a low speed track section that stores, loads, or stables vehicles. Siding is 

distinct from a running line or a main line that is primarily used for the movement of tracks.” Trial 

Ct. Op. at 2.
3

but RBMN ceased active use of the Crossing and siding on the 3901 Property after 

1982. On January 15, 1998, the Public Utility Commission (PUC) suspended the 

Crossing due to lack of use. Thereafter, SR 61 was repaved, and the tracks were 

buried or destroyed. 

On June 11, 2021, RBMN sought the PUC’s approval to re-establish 

rail service over the Crossing. On October 20, 2021, the PUC granted RBMN’s

request. On April 4, 2022, the Wolfes’ counsel notified RBMN that the Wolfes 

wanted the siding removed from the 3901 Property per the 1928 Deed easement 

termination provision. On April 15, 2022, RBMN’s president informed the Wolfes

that RBMN refused their demand and intended to move forward with its plan to once 

again use the siding at the 3901 Property. On April 20, 2022, the Wolfes filed a 

complaint and emergency motion for a preliminary injunction to prevent RBMN

from unlawfully entering the 3901 Property. On April 21, 2022, the trial court 

enjoined RBMN from entering the Wolfes’ 3901 Property pending a hearing on the 

Wolfes’ emergency motion.

On April 21, 2022, RBMN filed a declaration of taking, and then, on 

April 27, 2022, filed the Declaration. According to the Declaration and exhibits 

attached thereto, RBMN plans to erect rail sidetracks on the 3901 Property and

connect it to a reconstructed Crossing, to provide service to one of RBMN’s 

customers, Berks County Russell Standard (Russell Standard), an asphalt plant 

related to SemMaterials Energy Partners LLC, which owns the property to the south 

of the Wolfes’ Properties. On May 20, 2022, the Wolfes filed the Preliminary 

Objections, therein alleging that RBMN’s taking was not for a public purpose, but 

rather for conferring an impermissible private benefit on Russell Standard. The 

Wolfes also asserted that RBMN’s plan is a de facto taking of the Properties, since 

the Crossing will cut across the access point to the Properties and neighboring 

properties, and will landlock the 3907 Property. The Wolfes also contend that 
4

RBMN’s taking is a bad faith attempt to avoid the negotiated express easement 

terms, which require RBMN to remove the siding within 90 days of the Wolfes’ 

demand. Finally, the Wolfes aver that RBMN failed to post sufficient security with 

the Declaration. On May 25, 2022, RBMN opposed the Wolfes’ Preliminary

Objections. 

On June 2, 2022, the trial court held an evidentiary hearing on the 

Preliminary Objections. The trial court heard argument on June 3, 2022. On June 

8, 2022, the trial court sustained each of the Preliminary Objections. The trial court 

also ordered that title to the 3901 Property be revested to the Wolfes,struck RBMN’s 

Declaration, and directed the Wolfes’ counsel to file a motion for counsel fees and 

costs. On June 17, 2022, RBMN filed a motion for reconsideration in the trial court, 

which the trial court denied on June 21, 2022. On July 8, 2022, RBMN appealed to 

this Court.2 On July 21, 2022, the trial court issued its opinion (Opinion).

Initially, “[t]he Constitutions of the United States and Pennsylvania 

mandate that private property can only be taken to serve a public purpose. . . . [T]o 

satisfy this obligation, the public must be the primary and paramount beneficiary of 

the taking.” In re Opening a Private Rd. for Benefit of O’Reilly, 5 A.3d 246, 258 

(Pa. 2010) (citations omitted). A “taking does not ‘lose its public character merely 

because there may exist in the operation some feature of private gain, for if the public 

good is enhanced it is immaterial that a private interest also may be benefited.’” 

Appeal of Wash. Park, Inc., 229 A.2d 1, 3 (Pa. 1967) (quoting Belovsky v. 

Redevelopment Auth. of the City of Phila., 54 A.2d 277, 283 (Pa. 1947)). “In a 

2 RBMN also filed a notice of appeal from the order granting the injunction, which was the 

lead docket number on the consolidated cases in the trial court. This Court consolidated the two 

appeals sua sponte. RBMN raises no issues herein with respect to the injunction appeal. “In an 

appeal from an eminent domain proceeding, our review is limited to determining whether the lower 

court abused its discretion or committed an error of law[,] or whether the findings of fact were 

supported by substantial evidence.” Szabo v. Dep’t of Transp., 202 A.3d 52, 58 (Pa. 2019).
5

review of a decision to condemn property and of the extent of the taking, the trial 

court’s scope is limited to determining whether the condemnor is guilty of fraud, bad 

faith, or an abuse of discretion.” Redevelopment Auth. of the City of York v. Bratic, 

45 A.3d 1168, 1173 (Pa. Cmwlth. 2012). “The burden of proving that the condemnor 

has abused its discretion is on the objector or condemnee, and that burden is a heavy 

one because, in such cases, there is a strong presumption that the condemnor has 

acted properly.” In re Condemnation No. 2 Cmwlth. ex rel. Dep’t of Gen. Servs., 

943 A.2d 997, 1002 (Pa. Cmwlth. 2007).

Section 1511 of the Business Corporation Law of 1988 (BCL) provides, 

in relevant part:

(a) . . . . A public utility corporation[3]shall, in addition to 

any other power of eminent domain conferred by any other 

statute, have the right to take, occupy and condemn 

property for one or more of the following principal 

purposes and ancillary purposes reasonably necessary or 

appropriate for the accomplishment of the principal 

purposes:

(1) The transportation of passengers or property or both as 

a common carrier by means of elevated street railway, 

ferry, inclined plane railway, railroad, street railway or 

underground street railway, trackless-trolley omnibus or 

by any combination of such means.

15 Pa.C.S. § 1511.

RBMN first argues that the trial court ignored the Wolfes’ heavy burden 

of proof, and erred by finding that the taking was improper because it was not for a 

public purpose. 

In sustaining the Preliminary Objections, the trial court explained:

3 Section 1103 of the BCL defines “[p]ublic utility corporation,” in relevant part, as “[a]ny 

domestic or foreign corporation for profit that: (1) is subject to regulation as a public utility by the 

[PUC] or an officer or agency of the United States[.]” 15 Pa.C.S. § 1103.
6

[T]h[e] [trial] court found that the condemnation was 

effectuated solely to benefit a single private commercial 

enterprise, Russell Standard, and as such, violated the 

prohibition on using eminent domain for private purposes. 

The power of eminent domain may only be exercised for 

a public purpose. This condemnation, based on the 

evidence, is at the behest of and for the sole use of Russell 

Standard, a single private entity. The public does not 

benefit from [RBMN]’s condemnation in any way. The 

public will buy Russell Standard’s asphalt regardless of 

whether or not the needed materials arrive by rail or truck 

to Russell Standard’s plant.

Russell Standard wants the railroad for the convenience of 

its manufacturing process. The only goods moved on the 

rail will be those bought by Russell Standard. [RBMN]

will serve no other customers. [RBMN] will provide no 

public transportation. Whatever public benefit may 

ensue from the condemnation, the land being taken is 

to be used for a private enterprise and as such is 

prohibited. The presence of a public benefit, even if it 

were [sic] a significant one, cannot save what is otherwise 

an improper condemnation. Pa. Mut. Life Ins. Co. v. City 

of Phila., . . . 88 A. 904 ([Pa.] 1913). To condemn land 

owned by the Wolfes, so Russell Standard can 

commercially profit from the land to the Wolfes’

detriment serves a purely private, and thus, 

unconstitutional interest.

. . . . [I]n the instant case the condemnation sought is 

excessive to [RBMN]’s need to serve Russell Standard. It

appears that [RBMN] is protecting Russell Standard’s 

interest not to clutter its property with tracks where the rail 

cars could sit indefinitely until the products are needed.

Instead, it intends to clutter [the] Wolfes’ property.

Trial Ct. Op. at 12-13 (emphasis added). 

With respect to the Wolfes’ burden, the Pennsylvania Supreme Court 

long ago emphasized:

[T]he rule is that [“]the burden of showing the company is 

exercising franchises which it does not possess is on those 

alleging that [the corporation] is attempting to do what it 

is not authorized to do - construct a railroad for purely 
7

private purposes.[”] Deemer v. Bells Run R.R. Co., . . . 61 

A[.] 1014 [(Pa. 1905)]. The corporate directors have 

power to decide as to the location of, and public

necessity for, an extension of any part of the road, be it 

a branch or otherwise, and it is to be assumed, unless 

the contrary is plainly shown, that such officials, like 

all other officials, have performed their duty in good 

faith, when they declare a public necessity for an 

extension, or when they designate it as a branch.

Pioneer Coal Co. v. Cherrytree & Dixonville R.R. Co., 116 A. 45, 48 (Pa. 1922)

(emphasis added; citation omitted). 

Regarding public use/public purpose, the Pioneer Coal Court 

explained:

What constitutes public use is a point not free from 

difficulties, but wherever it appears from the attending 

circumstances that a section of road about to be 

constructed will in some direct way tend to contribute 

to the general public welfare, or the welfare of a 

considerable element of the public, it cannot be said 

that it will not serve a public use. This principle is now 

too well established in Pennsylvania to be questioned.

Here, conceding that the extension under discussion will 

be largely employed to take coal from the . . . 

[c]ompany’s properties, yet, since it must also be 

conceded that the life, happiness and prosperity of the 

people of Pennsylvania depend to a very large degree 

upon getting the coal supply of the [s]tate out of the 

mines, [and] on its way to the consumer, this in itself,

on the facts at bar, stamps a project as that before us 

as one for public use sufficiently to justify the exercise 

of the right of eminent domain.

Id. (emphasis added; citations omitted).

Further,

“it is not the special use made [of a section of road] which 

characterizes it [as a part of the public road], but its 

convenient necessity to that part which is [undeniably] for 

public use.” P[hila]., W[ilmington] & B[alt.] R.R. Co. v. 
8

Williams, 54 Pa. 103, 107 [(1867)].

[4] Finally, the mere 

fact that some selfish interest may have inspired the 

plan for the part in controversy in no sense prevents 

that section from being classed as a “branch” road, or 

for public use.

[5]

4 The sidetrack . . . when connected with The Pennsylvania 

Railroad, constituted a part of the railroad’s transportation 

facilities . . . . The railroad’s right[-]of[-]way and tracks are its 

private property, but subject to public use. If some of these 

facilities constituting its transportation system are privately owned, 

they are none the less [sic] charged with public use, and subject 

to regulation by the state. Sidetracks are among the works and 

appendages usual in the convenient operation of a railroad; they are 

facilities of such utility, even though privately owned; when 

connected with the line of the railroad company they are an 

integral part of the railroad system, regardless of ownership,

and . . . become public highways, and hence subject to regulation 

as such by the state.

Pa. R.R. Co. v. Pa. Pub. Util. Comm’n, 35 A.2d 584, 586 (Pa. Super. 1944) (emphasis added) 

(quoting Lehigh Navigation Coal Co. v. Pa. Pub. Util. Comm’n, 1 A.2d 540, 544 (Pa. Super. 1938) 

(citation omitted)).

5 More recently, this Court explained:

Section 102 of the Public Utility Code . . . defines railroad as 

“[e]very railroad, other than a street railway, by whatsoever power 

operated, for public use in the conveyance of passengers or property, 

or both, and all the facilities thereof.” 66 Pa.C.S. § 102. The federal 

Interstate Commerce Act[, 49 U.S.C. §§ 10101-11917,] defines 

“railroad” to include “a switch, spur, track, terminal, terminal 

facility, and a freight depot, yard, and ground, used or necessary for 

transportation.” 49 U.S.C. § 10102(6)(C). “[A] track leading from 

the main line of a railroad is variously described as a ‘switch,’ a 

‘siding,’ a ‘spur’ or a ‘branch.’” Erie & W[yo.] V[alley] R.[R.] Co. 

v. Pub[.] Serv[.] Comm’n, 74 Pa. Super. 338, 345 . . . ([] 1919).

. . . . The [r]ail [s]pur will be used in conjunction with the 

main railroad to load and unload rail cars. Although the proposed 

[r]ail [s]pur is private, it is part of the railroad, which is a public 

use. See Rogoff v. Buncher Co., . . . 151 A.2d 83 ([Pa.] 1959) 

(holding a private siding is part of a railroad system).

Choice Fuelcorp, Inc. v. Zoning Hearing Bd. (Pa. Cmwlth. No. 1515 C.D. 2012, filed May 16, 

2013), slip op. at 12 (emphasis added). Unreported decisions of this Court, while not binding, 

may be cited for their persuasive value. Section 414(a) of the Internal Operating Procedures of 
9

Pioneer Coal, 116 A. at 48 (emphasis added).

Subsequently, in C.O. Struse & Sons Co. v. Reading Co., 153 A. 350

(Pa. 1931), the Pennsylvania Supreme Court addressed a contested taking in which 

the Reading Railroad attempted to appropriate the plaintiff’s land to rebuild a branch 

road to Sears Roebuck & Company’s (Sears) facility for the purpose of facilitating 

merchandise shipments. The C.O. Struse Court stated: “The right to build branch 

railroads . . . has been many times affirmed by th[e Pennsylvania Supreme C]ourt.” 

Id. at 352. The C.O. Struse Court referenced Pioneer Coal, and other decisions,

summarizing:

In Getz’s Appeal, 10 Wkly. Notes Cas. 453 [(__)], the 

right of a railroad company to construct a branch to 

connect with a rolling mill was sustained. The right to 

maintain a branch railroad used only to transport 

freight from a manufacturing plant was sustained in

Rudolph v. [Pennsylvania] S[chuylkill] Val[ley] [Railroad]

[Co.], . . . 31 A. 131 [(Pa. 1895)]. A branch or spur track 

may constitute a part of the railroad’s transportation 

facilities although when constructed it may lead only to 

a single industry.

[6] Union Lime Co. v. Chicago [&] N[w.]

the Commonwealth Court, 210 Pa. Code § 69.414(a). Choice Fuelcorp is cited for its persuasive

value.

6 However [a siding constructed by the railroad upon its right-of-way] 

may have been constructed primarily to accommodate some 

individual shipper; its use cannot be refused to others similarly 

situated, and under like conditions. Any shipper then or thereafter 

doing business at any point on the line of the siding could not be 

denied, under like conditions, equal facilities with those allowed 

another. It is none the less [sic] devoted to public use because of 

the fact that it was constructed primarily for the convenience of 

a single shipper. It must be open to all, and becomes quite as 

much impressed with public use as any other track of the 

company.

Stoneboro & Chautauqua Lake Ice Co. v. Lake Shore & Mich. S. Ry. Co., 86 A. 87, 87 (Pa. 1913)

(emphasis added).

Once constructed, the siding is impressed with a public use 

which may not be derogated from by prior agreement with 
10

R[y.] Co[.], 233 U.S. 211 [(1914) (railroad track 

connecting to two quarries)]. See also [Borough of]

Bethlehem v. Lehigh & N[ew] E[ngland] R.R. Co., 253 Pa. 

251 [(1916) (railroad track connecting to a chemical 

company)]; McAboy’s App[eal], 107 Pa. 548 [(1884)]. In 

the construction of a branch the railroad company has 

the same power of eminent domain as in building the 

main line. Mayor, etc., of Pittsburgh v. The P[a.] [R.R.]

Co., 48 Pa. 355 [(1864)]. There is no controlling 

distinction between a coal mine or manufacturing 

plant which serves the public and a merchandise 

establishment, which does the same. Moreover, Sears[]

[is] engaged or [is] about to engage in the manufacture of 

paints on a large scale for commercial purposes.

C.O. Struse, 153 A. at 352 (emphasis added).

RBMN contends that its taking, here, similarly serves a public purpose. 

It claims that it is “reconstructing a siding in order to serve a customer who [sic] 

provides goods, namely, asphalt, to the public [and that] the [railroad] tracks [will 

be used] for the same purpose as they were used for in the past when the siding was 

last active - i.e., transporting asphalt f[ro]m the Russell Standard property.” RBMN 

Br. at 19. Russell Standard, an asphalt plant, is not unlike the coal mine in Pioneer 

Coal, the Sears merchandise establishment serving the public in C.O. Struse, and the 

manufacturing plant, lime quarries and chemical plant addressed in the cases cited 

therein. Consistent with Pioneer Coal and the Pennsylvania Supreme Court’s

statements in C.O. Struse that “[a] branch or spur track may constitute a part of the 

private parties. The fact that private parties, in order to induce 

its construction for their own convenience, contributed part or 

all of its cost is of no significance; nor would it alter the case in the 

slightest were it shown that, but for such contribution, the siding 

would not have been built. The controlling fact is that it was built,

and built by the railroad company, the only party having the 

right to build it, only, however, as a trustee of franchises 

committed to it by the [s]tate, to be exercised for the public 

benefit with preference to none.

Id. at 88 (emphasis added).
11

railroad’s transportation facilities although when constructed it may lead only to a 

single industry[,]” and “[t]here is no controlling distinction between a coal mine or 

manufacturing plant which serves the public and a merchandise establishment,

which does the same[,]” C.O. Struse, 153 A. at 352, and given the “strong 

presumption that the condemnor has acted properly[,]” In re Condemnation No. 2, 

943 A.2d at 1002, this Court agrees and concludes that RBMN’s condemnation is 

for a public purpose and, thus, the trial court erred by sustaining the Wolfes’ 

Preliminary Objection on the basis that RBMN did not take the 3901 Property for a 

public purpose.

RBMN next argues that the trial court erred by sustaining the Wolfes’

Preliminary Objection that a de facto taking occurred7 with respect to both the 3901 

Property and the 3907 Property. 

Addressing similar circumstances, this Court previously stated:

Such a claim was not required to be, nor should it have 

been, raised by preliminary objection. In re 

Condemn[nation] by Dep’t of Transp., of Right[-]of[-]Way 

for State Route 79, Section W10, a Ltd. Access Highway, 

in the Twp. of Cecil, . . . 798 A.2d 725, 732 ([Pa.] 2002) 

([]Sluciak[]).

In In re Condemnation by County of Allegheny ([]Appeal 

of Keith[]), 861 A.2d 387, 392 (Pa Cmwlth. 2004), we 

rejected as improper the owners’ procedural decision 

7 A de facto taking occurs when an entity that is clothed and vested 

with the power of eminent domain substantially deprives property 

owners of the use and enjoyment of their property. In such 

proceedings, property owners must establish that they were deprived 

of the use and enjoyment of their property and that this deprivation 

was a direct and necessary consequence of actions taken by the 

governmental entity. 

Newman v. Dep’t of Transp., 791 A.2d 1287, 1289 (Pa. Cmwlth. 2002) (citation omitted; italics 

added). “Speculative and conjectural harms are insufficient to show the substantial deprivation of 

use and enjoyment necessary to a de facto taking claim.” McMaster v. Twp. of Bensalem, 161 

A.3d 1031, 1037 (Pa. Cmwlth. 2017). 
12

to file preliminary objections to a declaration of taking 

alleging that a partial de jure condemnation resulted in 

a larger de facto taking of their property. The Court 

held that raising the issue of a de facto taking in that 

manner was improper because the owners were 

seeking a judicial determination of the value of their 

property after condemnation, which is not a judicial 

function. Instead, the owners “are entitled to the 

difference between the fair market value of their property 

before and after the condemnation, both values to be fixed 

by a jury of view or traverse jury on appeal; they are not 

entitled to a judicial determination that their property has 

no value after the take.” Id. [(citing In re N. Huntingdon 

by N. Huntingdon Twp. Mun. Auth. for Sewerage Purposes 

. . . 387 A.2d 183, 183-84 ([Pa. Cmwlth.] 1978))]. In 

other words, “[a] de jure condemnation [for a partial 

acquisition] cannot be converted to a de facto

condemnation by an averment in a preliminary 

objection to a declaration of taking that the effect of 

the de jure condemnation was to render the property 

valueless.” Appeal of Keith, 861 A.2d at 392.

2800 N. Broad St., LLC v. Commonwealth, 259 A.3d 1022, 1027 (Pa. Cmwlth. 2021)

(emphasis added). Similarly, here, it was improper for the Wolfes to raise, and error 

for the trial court to sustain, a preliminary objection that the “partial de jure

condemnation resulted in a larger de facto taking of [the Wolfes’] [P]ropert[ies].” 

Id. Thus, the trial court erred by sustaining the Wolfes’ Preliminary Objection 

raising a de facto taking.

Next, RBMN argues that the trial court erred by concluding the 

condemnation was made in bad faith. 

Regarding bad faith, this Court has explained:

[P]ublic officials are presumed to act lawfully and in good 

faith. [In re Condemnation by City of Phila. of Leasehold

of Airportels, Inc.], . . . 398 A.2d 224 ([Pa. Cmwlth.] 

1979). Where the right of eminent domain is vested in a 

municipality, administrative body, or even a private 

corporation, the question as to whether the circumstances 

justify the exercise of the power in a specific instance is 
13

not a judicial one, at least in the absence of fraud or . . . 

bad faith. Schenck v. Pittsburgh, . . . 70 A.2d 612 ([Pa.] 

1950). . . .

Fleet v. Redevelopment Auth. of the Cnty. of Wash., 607 A.2d 311, 312 (Pa. Cmwlth. 

1992) (emphasis added); see also York City Redevelopment Auth. of City of York v. 

Ohio Blenders, Inc., 956 A.2d 1052 (Pa. Cmwlth. 2008). “Bad faith requires a 

tainted or fraudulent motive . . . [and must be proved] by clear, precise and

indubitable evidence.” In re Condemnation of Land at Rear of 700 Summit Ave. 

Jenkintown Pa., 95 A.3d 946, 950 n.10 (Pa. Cmwlth. 2014). See also In re 

Condemnation by the Redevelopment Auth., 682 A.2d 1369, 1372 (Pa. Cmwlth. 

1996) (“It is a condemnee’s burden to show bad faith and this cannot be done merely 

by bald assertions. Bad faith must be described by clear averments of fact in the 

pleadings and proved by clear, precise and indubitable evidence.”). 

The law is well established:

“[A] trial court is limited in its review of a decision to 

condemn property and of the extent of the taking to 

determining whether the condemnor is guilty of fraud, bad 

faith, or has committed an abuse of discretion.” Appeal of 

Waite, . . . 641 A.2d 25, 28 ([Pa. Cmwlth.] 1994). . . .

Moreover,

[a] court has ‘no power to substitute [its] 

discretion for that of the [condemnor], nor to 

correct mistakes in judgment. It is presumed 

that the officials have performed their duties 

in good faith. . . .’ Swartz v. Pittsburgh Pub[.]

Parking Auth[.], . . . 439 A.2d 1254, 1256 

([Pa. Cmwlth.] 1981). Mere evidence that a 

decision is unwise will not warrant a 

conclusion that a condemnor has abused its 

discretion in its selection of a site.

Downingtown Area Sch. Dist. v. DiFrancesco, . . . 557 

A.2d 819, 821-22 ([Pa. Cmwlth.] 1989).
14

In re Condemnation by Commonwealth of Pa. Dep’t of Transp., of Right-of-Way of 

State Route 0443, Section 02S, in Twp. of Mahoning (Twp. of Mahoning), 255 A.3d

635, 644 (Pa. Cmwlth. 2021).

Further, 

a taking must be for an authorized use, follow a “suitable 

investigation leading to an intelligent, informed 

judgment[,]” and be a “well-developed plan of proper 

scope[.]” [Middletown Twp. v. Lands of Stone, 939 A.2d 

331, 338 (Pa. 2007)]. However, a condemnor “is not 

required to follow any set criteria in choosing a . . . site. 

All that is required is that an investigation be conducted so 

that the decision to condemn is an informed judgment.” 

Downingtown Area Sch. Dist., 557 A.2d at 822.

Twp. of Mahoning, 255 A.3d at 644-45.

There is no requirement that a condemnor conduct a 

suitable investigation specific to an alternative 

condemnee-requested proposal. Rather, the 

requirement that a condemnor conduct a suitable 

investigation applies to the project itself. While that may 

include consideration of an alternate proposal, nothing 

mandates the level of consideration that must be given 

thereto. A condemnor’s plan must be for a “proper 

purpose[,]” and “evidence of a well-developed plan of 

proper scope is significant proof that an authorized 

purpose truly motivates a taking.” Middletown Twp., 939 

A.2d at 338. But a condemnor “is not required to follow 

any set criteria in choosing a . . . site. All that is required 

is that an investigation be conducted so that the decision 

to condemn is an informed judgment.” Downingtown 

Area Sch. Dist., 557 A.2d at 822.

Twp. of Mahoning, 255 A.3d at 651.

Here, in concluding that RBMN condemned the 3901 Property in bad 

faith, the trial court reasoned:

[RBMN] wanted to condemn [the] [] [3901 P]roperty to 

benefit its private customer, Russell Standard. 

Unquestionably, the entry to and egress from Russell 
15

Standard could be moved southward and only affect 

Russell Standard’s property. [RBMN] refused to do this,

claiming it did not want the expense to do so; however, it 

did not care how much money the Wolfes had to expend 

to enjoy the use of their [Properties] or how much damages 

it had to pay the Wolfes.

[RBMN’s Vice President of Asset Management Matthew] 

Johnson [(Johnson)][,] testified that [RBMN] never 

contemplated not moving forward with the railroad 

activation on [the 3901 P]roperty. Thus, it never even 

considered an alternative route when it realized [the] 

Wolfes opposed the condemnation. [RBMN’s land 

development expert, Michael] Bercek [(Bercek)] did not 

even do a cost analysis on moving the gate southward onto 

Russell Standard’s property. Thus, th[e] [trial] court 

found that [RBMN] acted in bad faith in condemning [the] 

[] [3901 P]roperty.

This [trial] court specifically asked, . . . “why isn’t it 

moved south even more on-” [Reproduced Record (R.R.)

at 385a] “-on the other, Russell Standard [property]?”

[Id.] [RBMN] counsel gave a two-part explanation in 

answer to the very question that, if not obvious to 

everyone, was the paramount question to which th[e]

[trial] court needed an answer. The first prong was

answered and, thus, discussed in detail in this ruling. 

Th[e] [trial] court understands that it is maybe too 

expensive to relocate the track directly into Russell 

Standard and that a redo application to the [] PUC would 

need to be done. But [RBMN] will need to perform 

significant construction to lay new track regardless.

Again, th[e] [trial] court is disappointed with part one 

because no cost was provided for relaying track in the

easement compared to relaying track directly into Russell 

Standard. Part II of the answer is dumbfounding: “and that 

also would not work for Russell Standard’s purposes.”

[R.R. at 385a].

Th[e] [trial] court’s only conclusion that can be logically 

drawn from this non-answer is that Russell Standard does 

not want railroad tracks blocking access to and from its

property, just as [the] Wolfes do not! In other words, the 

very problems that [the] Wolfes object to suffering and, as 

testified to, the very reason they have cancelled the 
16

easement and oppose this condemnation are for the very 

business interference reasons that are objected to by 

Russell Standard. That is why it would not work for 

Russell Standard’s purposes. That reason must be so 

strong for Russell Standard, it is a deal breaker. 

Otherwise, [RBMN]’s counsel would have totally 

answered th[e] [trial] court’s question as required.

Trial Ct. Op. at 15-17.

RBMN asserts that it had legitimate reasons for condemning the 3901 

Property and conducted an appropriate investigation to be sufficiently informed, and 

thus, its taking is not in bad faith. Specifically,

RBMN conducted multiple site visits, R.[R. at] 527a-

[5]28a, RBMN planned to use existing railroad tracks and 

easements before the Wolfes revoked RBMN’s easement 

rights and filed an injunction, precluding RBMN’s access 

to the [3901 Property], R.[R. at] 401a[,] 45a, and RBMN’s

expert provided salient reasons why the tracks could not 

be moved onto the Russell Standard [p]roperty, namely, 

because moving the [C]rossing would result in

construction issues with existing utility lines and would 

require unreasonable expense to RBMN where it already 

had existing structures it could utilize. R.[R. at] 485[a].

RBMN Br. at 39. 

RBMN’s witness Bercek testified regarding the reasons for choosing 

the easement location and the difficulties in relocating the Crossing:

[Y]ou can see along where they have the proposed siding 

coming in to the Russell Standard property, just lying on 

the north side of that track is a fire hydrant.

. . . .

[The Wolfes’ proposal to move the [C]rossing further 

south would require] relocating that.

Just from a safety perspective using that fire hydrant in an 

emergency situation, the proximity to the proposed line

there is certainly an issue. You can move the standards 

back, but then you’re dealing with the underlying utilities 
17

in [SR] 61. Typically because of the load that you’re 

crossing [SR] 61 with, they would typically encase those 

utilities in concrete. You have sewer, you have water, you

have gas, you have electric. They’re encased currently 

underneath the existing crossing. You’d have to go 

through that whole process again. So the complexity is 

you’re dealing with authorities, townships, [the 

Pennsylvania Department of Transportation], the PUC, 

because you then have to, I’m assuming, open a new 

permit, and you know, repermit that site as a crossing.

R.R. at 484a-485a. Bercek further testified that moving the Crossing would be “a 

very complex task” and “[c]ertainly expensive.” R.R. at 487a.

This Court concludes that the unrefuted record evidence demonstrates

RBMN’s proper purpose for the condemnation of the 3901 Property, that RBMN

conducted a suitable investigation into the project’s location, and that there is no 

clear, precise and indubitable record evidence to support the Wolfes’ argument or 

the trial court’s ruling that RBMN acted in bad faith. The trial court’s review of a 

decision to condemn property is limited. Appeal of Waite, 641 A.2d at 28. Here, 

the trial court exceeded its authority by injecting its opinion on the proper location 

for the project over that of the condemnor, and based its ruling thereon.8 

8 The Wolfes assert that

[RBMN’s] brief mischaracterizes [the Wolfes’] bad faith argument 

in its entirety. The issue is not whether it is bad faith that [RBMN] 

did not implement an alternate route, nor is the issue whether 

[RBMN] met with [the Wolfes] on more than one occasion to 

discuss its plans. Simply put, [RBMN]’s taking is in bad faith 

because it is an attempt to willfully violate an agreement between 

the parties (one made by their predecessors-in-title) as set forth in 

the 1928 Deed. 

Wolfes’ Br. at 23. This Court notes that 

[a] state (and, of course, a county) cannot by contract divest itself of 

its power of eminent domain[;] that is, to take private property for 

public use upon payment of just compensation to the owner. The 

power of eminent domain is ‘so inherently governmental in
18

Accordingly, the trial court erred by sustaining the Wolfes’ Preliminary Objection 

alleging bad faith.

Finally, RBMN contends that the trial court erred by sustaining the 

Wolfes’ Preliminary Objections and dismissing the Declaration for failure to post 

sufficient security. Section 303 of the Eminent Domain Code9(Code) provides:

(a) Bond. -- Except as provided in subsection (b), every 

condemnor shall give security to effect the condemnation 

by filing with the declaration of taking its bond, without 

surety, to the Commonwealth for the use of the owner of 

the property interests condemned, the condition of which 

shall be that the condemnor shall pay the damages 

determined by law.

. . . .

(c) Insufficient security. -- The court, upon preliminary 

objections of the condemnee . . . , may require the 

condemnor to give bond and security as the court 

deems proper if it appears to the court that the 

bond . . . of the condemnor is insufficient security.

26 Pa.C.S. § 303(a),(c) (emphasis added).

RBMN presented into evidence a letter from Fulton Bank that it had 

$100,000.00 in a bank account, see R.R. at 183a, and Johnson’s affidavit and 

testimony that RBMN had a $10 million line-of-credit.10 

character and so essential for the public welfare’ as not to be 

susceptible of abridgement by agreement. 

Condemnation of 110 Wash. St., Borough of Conshohocken, Pa. by the Redevelopment Auth. of 

the Cnty. of Montgomery, 767 A.2d 1154, 1159 (Pa. Cmwlth. 2001) (quoting Chesapeake & Ohio 

Ry. Co. v. Greenup Cnty., 175 F.2d 169, 172 (6th Cir. 1949) (citations omitted)). If the easement 

could not have divested RBMN of its condemnation power, RBMN’s failure to comply with the

terms of the 1928 Deed (and the easement contained therein) when it condemned the 3901 Property

cannot serve as the basis for bad faith allegations. 

9

26 Pa.C.S. §§ 101-1106.

10 However, on cross examination, Johnson admitted that he did not know how much of 

that $10 million line-of-credit was available. See R.R. at 472a-473a.
19

The trial court concluded that RBMN’s security was insufficient, 

stating:

The only evidence regarding the sufficiency of surety is []

Johnson’s testimony, and [] Johnson does not even know 

how much of the $10 million line[-]of[-]credit from Fulton 

Bank is presently available. [RBMN] has other lawsuits 

pending, so conceivably some or even a significant portion 

of the line[-]of[-]credit has been depleted. The

$100,000.00 in [RBMN]’s bank account may be 

inadequate for all of its business needs. Significantly, []

[RBMN]’s line[-]of[-]credit letters from Fulton Bank were 

never admitted into evidence by [RBMN]. 

[The] Wolfes’ [Properties] alone, using the Berks County 

Assessment Office [(Tax Office)] calculations,[11][are] 

valued at $289,728.00.[12] This valuation does not take 

into consideration the rental value of the [Properties] and 

the value of its structures. For these reasons, th[e] [trial]

court found the sufficiency of the security to be 

inadequate.

Trial Ct. Op. at 13-14.

11 RBMN contends that the Wolfes failed to meet their burden because the only evidence 

of the Properties’ value was as provided by the Tax Office, and pursuant to Section 1105(4) of the 

Code, 26 Pa.C.S. § 1105(4), such evidence is explicitly inadmissible.

Section 1105(4) of the Code states: 

At the hearing before the viewers or at the trial in court on 

appeal:

. . . .

(4) The assessed valuations of property condemned shall not 

be admissible in evidence for any purpose.

26 Pa.C.S. § 1105(4) (emphasis added). Contrary to RBMN’s contention, Section 1105(4) of the 

Code does not preclude the use of a property’s assessed value for purposes of a trial court’s 

consideration of a preliminary objection to a security’s sufficiency but, rather, prohibits the use of 

such evidence “[a]t the hearing before the viewers or at the trial in court on appeal[,]” i.e., at the 

valuation stage. Id. (emphasis added). 

12 The trial court’s reference to $289,728.00 represents the combined land values of the 

3901 Property and the 3907 Property. According to the Tax Office, the 3901 Property’s land alone 

is assessed at $100,800.00. See R.R. at 333a. 
20

Here, because the Wolfes established the 3901 Property’s value and 

raised a legitimate question regarding the availability of the full $10 million line-ofcredit, the trial court properly concluded RBMN’s security was insufficient. 

However, instead of having dismissed the Declaration, pursuant to Section 303(c) of 

the Code, the trial court should have “require[d] [RBMN] to give bond and security 

as the [trial] court deems proper . . . .” 26 Pa.C.S. § 303(c). Accordingly, this issue 

is remanded and the trial court is directed to determine the amount RBMN is to 

provide as proper security, and direct RBMN to provide such security.

For all of the above reasons, the trial court’s order is reversed and the 

matter is remanded to the trial court to determine the amount RBMN is to provide 

as proper security, and direct RBMN to provide such security.

13

_________________________________

ANNE E. COVEY, Judge

Judge Fizzano Cannon and Judge Wallace did not participate in the decision in this 

case.

13 Because the trial court erred by sustaining the Wolfes’ Preliminary Objections, the trial 

court also erred by ordering that the 3901 Property’s title be revested to the Wolfes and that the 

Wolfes are entitled to recover counsel fees and costs. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gary D. Wolfe and Mary O. :

Wolfe, husband and wife :

:

v. :

:

Reading Blue Mountain and :

Northern Railroad Company, : No. 649 C.D. 2022

Appellant :

:

In re: Condemnation of Lands of :

Gary D. Wolfe and Mary O. Wolfe :

Pottsville Pike, Muhlenberg Township :

:

Appeal of: Reading Blue Mountain : No. 722 C.D. 2022

and Northern Railroad Company :

O R D E R

AND NOW, this 14th day of November, 2022, the Berks County 

Common Pleas Court’s (trial court) June 8, 2022 order sustaining the preliminary 

objections of Gary D. Wolfe and Mary O. Wolfe is REVERSED, and the matter is 

REMANDED to the trial court to determine the amount Reading Blue Mountain and 

Northern Railroad Company (RBMN) is to provide as proper security, and direct 

RBMN to provide such security.

Jurisdiction is relinquished.

_________________________________

ANNE E. COVEY, Judge