Appeal from order of Court of Common Pleas of Luzerne County, Oct. T., 1965, No. 1677, in case of Philip P. Pane and Mary Pane, his wife v. Commonwealth of Pennsylvania, Department of Highways.
George R. Specter, Assistant Attorney General, with him Robert W. Cunliffe, Assistant Attorney General, John R. Rezzolla, Deputy Attorney General, and Walter E. Alessandroni, Attorney General, for Commonwealth, appellant.
Pasco L. Schiavo, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Roberts concurs in the result.
This appeal presents an interesting question: is the Commonwealth of Pennsylvania, in the absence of an actual "taking" of property, liable for consequential damages where a plan for the widening and change of grade of a highway was duly filed prior to the passage of the Eminent Domain Code of 1964*fn1 (the Code), but where the actual widening of said highway and the change of grade, -- as the result of which a property abutting the highway sustained damages -- was not undertaken until after the effective date of the Code?
For approximately 18 years, Philip Pane and Mary Pane, his wife, have been the owners of property -- 279 feet along the highway and 380 feet in depth -- which abuts upon Route 29*fn2 in Sugarloaf Township, Luzerne County. On July 10, 1963, the Commonwealth of Pennsylvania, acting through its Department of Highways and in accordance with a plan signed by the Governor, authorized the widening and change of grade of Route 29.*fn3 Under this plan, the highway was to be widened from a two-lane to a four-lane highway and, at the point where Panes' property abuts the highway, the grade of the highway was to be raised eight to ten feet. No portion of Panes' property was to be "taken" under this plan. Actual construction of the highway, with the resultant widening and change of grade, was
not undertaken until the early part of 1965, approximately six months subsequent to the effective date of the Code.
On August 10, 1964, Panes, claiming that the widening of the highway and the change of grade had caused an "injury" resulting in damage to their abutting property,*fn4 petitioned the Court of Common Pleas of Luzerne County for the appointment of a board of viewers and a board of viewers was appointed. On November 10, 1965, the board of viewers, after a hearing, awarded $10,000 damages to Panes. From that award the Commonwealth appealed and the Court of Common Pleas of Luzerne County affirmed the award of the board of viewers. From that order this appeal has been taken.
Before the board of viewers and in the court below the Commonwealth maintained that, since there was no actual "taking" of Panes' property and since the damages claimed were consequential in nature, Panes had no cause of action because the Code -- which for the first time permitted the recovery against the Commonwealth of consequential damages*fn5 in the absence of a "taking" of property -- was not applicable to the present proceeding. The Commonwealth's position is based squarely upon its construction of the language of the Code.
Prior to the passage of the Code, the Commonwealth was not liable for damages arising from the exercise of its power of eminent domain unless there had been an actual "taking" of property: Anderson Page 493} Appeal, 408 Pa. 179, 181, 182 A.2d 514; McCrady Case, 399 Pa. 586, 592, 160 A.2d 715. In Anderson Appeal, supra, we said: "It has long been the established rule that absent an act of the legislature expressly imposing liability, the Commonwealth is not liable for consequential damages to land where there is no actual physical taking: [citing authorities]." (at p. 181). The legislature, by the enactment of § 612 of the Code, has now supplied the legislative deficiency pointed out in Anderson Appeal, supra; § 612 expressly imposes liability on the Commonwealth for certain damages to abutting property*fn6 even though there has not been an actual "taking". Section 612 provides: "Consequential Damages. All condemnors, including the Commonwealth of Pennsylvania, shall be liable for damages to property abutting the area of an ...