Appeal from the Order of the Court of Common Pleas of Erie County in case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, of Right-of-Way for a Legislative Route #495, Section 10, in Harborcreek Township, No. 2109-A-1970.
W. Richard Cowell, for appellant.
David A. Johnston, Jr., Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and J. Shane Creamer, Attorney General, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson.
This case arose out of a Declaration of Taking filed September 1, 1970, condemning a portion of appellant's property. Preliminary objections were filed pursuant to Section 406 of the Eminent Domain Code, Act of June 22, 1964, Special Session, P.L. 84, Art. IV, 26 P.S. § 1-406. After hearing the preliminary objections were dismissed and this appeal was taken.
Appellant's property is situated on the north side of Route 5 in Erie County. A drainage ditch or channel arising on the south side of Route 5 carries water through a pipe beneath the highway to the north side and then across appellant's land until it flows into Six Mile Creek. Because the original 30-inch pipe beneath the roadway was replaced by a 60-inch pipe, the Commonwealth now seeks to condemn a portion of appellant's land to provide a shortened, straight channel with an increased gradient of 1%. This is necessary, it is alleged, to facilitate the flow of water through the pipe so as to prevent silting and clogging, which in turn protects the highway from flooding and erosion.
Appellant first contends that the Department of Transportation failed to comply with the requirements set forth in Section 2002 of the Administrative Code, Act of April 9, 1929, P.L. 177, Article XX, as amended by the Act of May 6, 1970, P.L. 356, 71 P.S. § 512. The relevant portions of Section 2002, as recently amended by the Act of May 9, 1972, P.L. , No. 65, state:
"(b) Upon the submission of the preliminary plan or design to the Department of Transportation for any transportation route or program requiring the acquisition of new or additional right-of-way, the Department of Transportation except in cases involving complaint proceedings under the jurisdiction of the Public Utility Commission shall have the power and its duty shall
be to follow the hearing procedures now or hereafter required by the Federal Government for Federal-aid transportation programs pursuant to Titles 23 and 49 of the United States Code as amended and the regulations and procedures thereunder even though the transportation route or program does not contemplate the use of or actually employ Federal funds . . . .
". . . At the hearings required by this section, the public officials named in clause (15) of subsection (a) of this section shall make a report indicating the environmental effects of the proposed transportation route or program. The Department of Transportation shall not construct or reconstruct any portion of the transportation route or program unless the ...