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CONROY-PRUGH GLASS COMPANY v. COMMONWEALTH (12/27/72)

decided: December 27, 1972.

CONROY-PRUGH GLASS COMPANY
v.
COMMONWEALTH



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Conroy-Prugh Glass Company, a Pennsylvania corporation, v. Commonwealth of Pennsylvania, Department of Transportation, No. 2767 April Term, 1971.

COUNSEL

J. Craig Kuhn, with him Kuhn, Engle and Blair, for appellant.

Andrew L. Weil, Special 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 President Judge Bowman.

Author: Bowman

[ 7 Pa. Commw. Page 67]

This is an appeal from a decision of the Common Pleas Court of Allegheny County sustaining preliminary objections to a petition for the appointment of viewers.

The dispute in this case concerns preliminary planning for the Ohio River Boulevard Extension in the City of Pittsburgh. The Conroy-Prugh Glass Company (Conroy-Prugh) owns property at 1430 Western Avenue located near the northern end of the West End Bridge in Pittsburgh. Conroy-Prugh, the appellant, filed a petition for the appointment of viewers under Section 502(e) of the Eminent Domain Code of 1964, Act of June 22, 1964, Special Sess., P.L. 84, 26 P.S. § 1-502(e), alleging compensable injury to its property for which no declaration of taking had been filed. Conroy-Prugh avers that since 1959, seven alternate routes have been displayed regarding the boulevard extension, all of which will involve the taking of its property. The publicity given to these plans is allegedly the cause of the "taking" in that tenants in Conroy-Prugh's building began vacating in 1966 and 1967, the principal tenant having left in 1968. Appellant claims that this rendered it unable to pay taxes causing the property to be

[ 7 Pa. Commw. Page 68]

    the subject of a pending City Treasurer's sale. The Pennsylvania Department of Transportation (PennDOT) contends that the project is "still in the preliminary design stage" and that no compensable injury has occurred at this time, especially since public notice and public hearings are required by law.

Basic to this type of action is the conflict between the public's right to know and the possible result thereof. With regard to proposed improvements, the requirement of advance publicity and public hearings (see § 2002 of the Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 512) is designed to afford to the public and affected parties knowledge of planned public improvement projects and a right to be heard. This same publicity can result in the enhancement or depreciation of property values in the area of the proposed project. A loss of tenants is the negative consequence for which damages are claimed in the instant case.

Where no declaration of taking is filed, § 502(e) of the Eminent Domain Code provides: "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."

Pursuant to this section, Conroy-Prugh petitioned for viewers to which PennDOT filed preliminary objections on the grounds that the petition fails to aver that a declaration of taking has been filed, fails to set forth any facts which would entitle Conroy-Prugh to any consequential damages, fails to set forth the date of the alleged taking or the manner in which the property was taken, fails to set forth a cause of ...


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