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JACOBS v. NETHER PROVIDENCE TOWNSHIP (12/01/72)

decided: December 1, 1972.

JACOBS, ET UX.
v.
NETHER PROVIDENCE TOWNSHIP



Appeal from the Order of the Court of Common Pleas of Delaware County in case of Condemnation of the Land and Property of G. William and Lillian E. Jacobs situate: 320 W. Rose Valley Roard, Wallingford, Pennsylvania v. Nether Providence Township, 214 Sykes Lane, Wallingford, Pennsylvania. Condemnation for: Drainage Purposes, No. 2316 of 1971.

COUNSEL

John W. Wellman, with him Steven G. Brown, and Fronefield, deFuria and Petrikin, for appellant.

William G. Adamson, Delaware County Legal Assistance Association, Inc., for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by President Judge Bowman.

Author: Bowman

[ 6 Pa. Commw. Page 596]

Procedure questions involved in this case impinge upon the substantive issue of whether a property owner's allegations of actions taken by a local government are sufficient, if proven, to establish a de facto "taking" or compensable injury within the meaning of the Eminent Domain Code, Act of June 22, 1964, Special Session, P.L. 84, as amended, 26 P.S. ยง 1-101.

Appellees own residential property in Nether Providence Township, Delaware County. On March 5, 1971, they filed a petition for the appointment of viewers seeking redress from the township for damages to their property caused by the flooding of a drainage ditch and creek bed at the rear of their property allegedly caused by the concentration and channeling of storm water drainage into their property from three "upstream" land developments.

With respect to the construction of four houses on acreage formerly an orchard it is alleged that the township approved the project under a subdivision ordinance and drainage "from the tract was approved." Similarly, as to the construction of a nursing home, the township is alleged to have approved the same "under general powers" and drainage "from this tract was approved." As to the third development, a new high school facility on a forty acre tract requiring extensive regrading and drainage of a swampy area which included the construction of a collecting pond, it is alleged that the township "participated in design and approved drainage of this tract."

[ 6 Pa. Commw. Page 597]

The township filed preliminary objections asserting that (1) the court lacked jurisdiction to entertain the petition, (2) petitioners failed to state a cause of action, and (3) a prior action in equity by the property owners against the township involving the same facts is res judicata of this proceeding.

After argument, a majority of the court dismissed the township's preliminary objections and directed the viewers to make findings of fact respecting petitioners' claim that the township had effected a taking "in accordance with Section 511(4) of the Eminent Domain Code." It is from this order that the township has appealed to this Court, to which appeal petitioners (appellees here) filed a motion to quash for want of an appealable order.

Procedural questions of first impression arise from this order and its supporting opinion by a majority of the court.

Although the Eminent Domain Code does not specifically so provide, we have sanctioned the use of preliminary objections as the appropriate procedure to test the legal sufficiency of a petition for the appointment of viewers filed by a property owner alleging a de facto "taking" or compensable injury to his property by a governmental body. ...


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