Appeal from the Court of Common Pleas, Trial Division, Law, for the County of Philadelphia, No. 5005 October Term, 1969, in case of In the Matter of: Condemnation in Fact, by the Commonwealth of Pennsylvania, Department of Highways, arising from Acts, Actions and Failures and Refusals to act by the said Department of Highways concerning and with Regard to the Crosstown Expressway in Eminent Domain. Appeal transferred October 20, 1970, to the Commonwealth Court of Pennsylvania from the Superior Court of Pennsylvania.
David A. Johnston, Jr., Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Fred Speaker, Attorney General, for appellant.
Eugene F. Brazil, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by President Judge Bowman.
This is an appeal by the Department of Highways (now the Department of Transportation) from the lower court's dismissal of its preliminary objections to the appointment of viewers. The question on appeal is whether the lower court properly concluded that the well pleaded averments of a property owner's petition for the appointment of viewers are legally sufficient to state a cause of action for compensable injury by reason of a de facto taking. We are without the benefit of the lower court's reasoning in concluding as it did in that it has not filed a brief statement of its reasoning in the form of an opinion, contrary to our Rule 23.
On October 28, 1969, Simon Levine, the owner of premises known as 631 South Ninth Street in Philadelphia filed a petition for the appointment of viewers alleging compensable injury to his property by reason of certain acts and activity carried on by the Commonwealth incident to a highway project commonly known
as the proposed "Crosstown Expressway" in the City of Philadelphia.
The acts and activity of the Commonwealth beginning in September 1967 alleged to constitute compensable injury to his property, and thus a de facto condemnation, consist of public proclamations of the proposed route; public statements of the imminence of condemnation which would probably occur on or before December 1, 1968; negotiating for and amicably acquiring properties within the proposed route; notice to tenants and owners of properties of the imminence of condemnation including tenants and prospective tenants of the petitioner's premises; appraisal activity; public announcements that just compensation would be paid to condemnees; and the urging of the City of Philadelphia to impede private development of properties within the proposed route and to approve the project. Also specifically averred is the loss of tenants by the property owner and his inability to find new tenants by reason of these acts and activity of the Commonwealth.
The petition concludes that as a result of such acts and activities petitioner has sustained "a substantial diminution of the value of Premises and its income derived therefrom, so as to cause a condemnation by taking thereof, and as a result of which Petitioners are entitled to just compensation under law."
It is not disputed that the "Crosstown Expressway" project, being a limited access highway, was subject to formal approval by the City of Philadelphia through enactment of an appropriate ordinance which has never occurred. Nor is it disputed that the Commonwealth has not filed a declaration of taking or notice of condemnation accompanied by a plan.
Subsection (e) of Section 502 of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, 26 P.S. § 1-502, provides:
"§ 1-502. Petition for the appointment of viewers
"(e) If there has been a compensable injury suffered and no declaration of taking therefor has been filed, a condemnee may file a petition for the appointment of viewers substantially in the form provided for in subsection (a) of this section, setting forth such injury."*fn1
An appeal was taken by the Commonwealth on September 8, 1970 to the Superior Court and transferred to the Commonwealth Court by order dated October 20, 1970 pursuant to Section 507 of the Appellate Court Jurisdiction ...