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COMMONWEALTH APPEAL (06/24/66)

decided: June 24, 1966.

COMMONWEALTH APPEAL


Appeal from order of Court of Common Pleas of Bucks County, Dec. T., 1964, No. 1325, in re matter of condemnation of land for L. R. 1062 and 1068 (Routes 202 and 611 Bypasses).

COUNSEL

William R. Mosolino, Assistant Attorney General, with him Michael R. Deckman, Assistant Attorney General, John R. Rezzolla, Deputy Attorney General, and Walter E. Alessandroni, Attorney General, for Commonwealth, appellant.

Burton Spear, with him Edmund V. Ludwig, and Biester and Ludwig, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Concurring Opinion by Mr. Justice Roberts.

Author: Cohen

[ 422 Pa. Page 74]

On October 28, 1964, the Governor of the Commonwealth of Pennsylvania approved certain limited access highway plans and drawings which two days earlier had been approved by the Secretary of Highways. On November 9, 1964 these plans and drawings were recorded in the Office of the Recorder of Deeds of Bucks County.

Two sets of drawings are involved. Except for the Legislative Route and Station designations, they bear similar legends, as follows:

"Drawings Establishing Limited Access Highway and Designating Future Location and Width of

This Plan Prepared Pursuant to Section 2 of the Act of May 29, 1945, P. L. 1108, as Amended, and Section 219 of the Act of June 1, 1945, P. L. 1242."

Under dates of November 16, 1964, and November 19, 1964, the District Engineer of the Department of Highways sent identical letters to Burton and Catherine Spear (appellees) advising them of the filing of these plans, indicating to them how their property was affected by the plans and quoting from § 219 of the Act of June 1, 1945, P. L. 1242, to the effect that the Secretary of Highways is authorized to designate the future location and width of a proposed highway and that no owner of property affected thereby may improve his property thereafter except at the risk of foregoing damages therefor. The letters concluded with the following paragraph: "Please note that your land has not

[ 422 Pa. Page 75]

    been condemned; rather, the Commonwealth has signified its intention to construct the aforesaid highway improvement at some future time, probably within five (5) years. Prior to any actual condemnation of your property, department employees will contact you to negotiate the purchase of that portion of your property required for the highway project."

On December 18, 1964, appellees petitioned the Court of Common Pleas of Bucks County for the appointment of viewers pursuant to § 502(e) of the "Eminent Domain Code," Act of June 22, 1964 (Spec. Sess.), P. L. 84, 26 P.S. § 1-502(e). Referring to the aforementioned plans and to the absence of the filing of a declaration of taking by the Department of Highways, appellees contended that the Department's action ...


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