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WASHINGTON PARK (05/03/67)

decided: May 3, 1967.

WASHINGTON PARK, INC. APPEAL


Appeals from order of Court of Common Pleas of Washington County, Jan. T., 1966, No. 89, in re condemnation of right of way Legislative Route 62214, Section 1-A, and Legislative Route 108 in South Strabane Township.

COUNSEL

Samuel L. Rodgers, with him John W. Mamula, Davis G. Yohe and Richard A. Zappala, for condemnee, appellant.

Thomas F. Nelson, with him Judd N. Poffinberger, Jr., and Kirkpatrick, Pomeroy, Lockhart & Johnson, for lessee, appellant.

George R. Specter, Assistant Attorney General, with him Guy S. Mamolito and Robert W. Cunliffe, Assistant Attorneys General, John R. Rezzolla, Deputy Attorney General, and Edward Friedman, Attorney General, for Commonwealth, appellee.

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

Author: Roberts

[ 425 Pa. Page 351]

This is an appeal from the dismissal of preliminary objections in an eminent domain case. Pursuant to the Eminent Domain Code of 1964,*fn1 the Commonwealth condemned land in South Strabane Township, Washington County, for the purpose of providing access lanes connecting U.S. Interstate 70, which crosses U.S. 19 near the situs of the condemnation, and U.S. 19. As part of this project, the Commonwealth found it necessary to widen Oak Spring Road, a two lane, eighteen foot highway, which is parallel to Interstate 70 and also intersects U.S. 19. Washington Park, Inc. (also known as K-Mart), a shopping center located on the western side of U.S. 19 between Oak Spring Road and Interstate 70 and the condemnee in these proceedings, filed preliminary objections alleging that the taking was an unconstitutional exercise of the Commonwealth's power of eminent domain because said taking was in fact for a private rather than a public purpose.*fn2

Washington Park concedes that its objection to the condemnation stems from its belief that the principal beneficiary of the highway improvement project will be a rival shopping center, Southgate Shopping Center, Inc., which will be located directly to the west of appellant.

[ 425 Pa. Page 352]

Without this improvement Southgate's only connection with a major highway will be via Oak Spring Road, whereas Washington Park has frontage directly on U.S. 19. The deceleration lane from Interstate 70, on the other hand, will service both plazas. The condemnee-appellant's assumption that the proposed improvements will benefit Southgate is supported by the record, for Southgate's tenants have made the highway improvements a condition of their leases. Moreover, condemnee points to an agreement in which Southgate agrees to indemnify the Commonwealth for its liability to Washington Park arising out of the condemnation.

By its preliminary objections, appellant requested that the Commonwealth's declaration of taking be stricken and title to the property be revested in its corporate name. Though Washington Park objects to the entire highway project, only a small portion of their land, approximately 1200 square feet, is involved in this appeal.*fn3 Nonetheless at the hearing on the preliminary objections the court below permitted appellant considerable latitude in the introduction of its testimony in order to afford it ample opportunity to sustain its allegation that the entire project was conceived by Southgate, with the aid of Commonwealth officials, and was designed solely to benefit Southgate. The court below, however, concluded not only that the condemnee had failed to substantiate its charges but also that "there was not one scintilla of evidence of fraud, corruption or misfeasance."*fn4 The court's conclusions were approved by an en banc panel; we likewise find the condemnee's contentions to be without merit.

[ 425 Pa. Page 353]

The Secretary of the Department of Highways has condemned the land in question under the statutory authorization contained in the Act of June 1, 1945, P. L. 1242, § 210, 36 P.S. § 670-210. We have no power to substitute our discretion for his, nor to correct mistaken judgments. Furthermore, it is presumed that the highway department's officials have performed their duties in good faith; the burden upon the appellant to prove the contrary, that the officials acted in a capricious, or fraudulent manner, or that their actions were based upon private motives inconsistent with the public welfare, is a heavy one. See, e.g., Crawford v. Redevelopment Auth., 418 Pa. 549, 553-54, 211 A.2d 866, 868 (1965); Blumenschein v. Pittsburgh Housing Auth., 379 Pa. 566, 570-74, 109 A.2d 331, 333-35 (1954); Robb v. Stone, 296 Pa. 482, 146 Atl. 91 (1929).

We, of course, agree with appellant that the Commonwealth may condemn land only for a public purpose. Nevertheless while the power of eminent domain may not be employed "for the mere purpose of devoting it to the private use of another, even though there be involved in the transaction an incidental benefit to the public," Belovsky v. Redevelopment Auth., 357 Pa. 329, 340, 54 A.2d 277, 282 (1947); cf. Price v. Philadelphia Parking Auth., 422 Pa. 317, 221 A.2d 138 (1966), the 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." Belovsky v. Redevelopment Auth., supra at 341, 54 A.2d at 283. "Highways almost always benefit the owners of land through which they are laid out, and are often constructed at the request of individuals . . . but it has never been held that the laying out of a highway . . . is invalid on that account." 2 Nichols, Eminent Domain § 7.222[2] (3d ed. 1963).

[ 425 Pa. Page 354]

In a slightly different context, our courts have already rejected appellant's argument, for legislation authorizing the taking of land in order to build a private road whose principal purpose was to provide an individual with access from his property to a highway has on several occasions been held to be for a public purpose and hence constitutional. See Waddell's Appeal, 84 Pa. 90, 93-94 (1877); Pocopson Road, 16 Pa. 15 (1851); Marinclin Appeal, 204 Pa. Superior Ct. 552, 205 A.2d 885 (1964); Dickinson Township Road, 23 Pa. Superior Ct. 34 (1903). The public's utilization of the improvements on Oak Spring Road and U.S. 19 will certainly be more immediate and dramatic than in the private road cases.*fn5

In support of its allegation that the condemnation was not for an authorized public purpose, Washington Park relies in part upon an argument which when analyzed becomes a "chicken and egg" problem: it assumes that the widening of Oak Spring Road and the construction of Southgate are interrelated, that is, without Southgate the road would not be needed and without the road Southgate would not be built. The record contains testimony which casts considerable doubt upon the absoluteness of appellant's position,*fn6 but even

[ 425 Pa. Page 355]

    if its premise was uncontested its conclusion would be a non sequitur. The Commonwealth's officials have an obligation to consider the future, as well as the present, needs of the community.*fn7 Whether or not Southgate generated the need for the work is immaterial, for Southgate could not exist if the community were unable to support it. Nor is the Commonwealth required to refrain from widening its roads simply to perpetuate Washington Park's favorable position at this location.

Indeed appellant's entire argument totally misconceives the extent of the public's interest in adequate highways: "The public character of the road does not depend upon the degree of public necessity or convenience that require it or the extent to which the public uses it, or the number of persons that it accommodates, and it is no legal objection that a proposed highway will be a cul de sac, or that it will lead to the residence or place of business of but one individual, for the public may desire to visit or do business with him. If a road is to be open for public travel the purpose for which the public may wish to travel is not material, and land may be taken by eminent domain for a road which is intended solely for driving for pleasure and recreation or to furnish a view of beautiful natural scenery. Streets are frequently laid out for the purpose of opening up private land, but if a street is to be open to public travel it is well settled that it is for the public use, although it is of especial convenience or advantage to certain individuals, or even if its ...


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