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HEGEDIC v. DEPARTMENT TRANSPORTATION (05/10/73)

decided: May 10, 1973.

HEGEDIC
v.
DEPARTMENT OF TRANSPORTATION



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, of Right of Way for Legislative Route 1021, Section 8R/W, A Limited Access Highway, in Marshall Township, No. 938 April Term, 1972.

COUNSEL

James M. Keller, for appellant.

Andrew L. Weil, Special Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for appellee.

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

Author: Per Curiam

[ 8 Pa. Commw. Page 552]

Judge Frederic G. Weir of the Court of Common

[ 8 Pa. Commw. Page 553]

Pleas of Allegheny County ably discusses and disposes of the issues properly raised by preliminary objections which have not been amended to include additional issues. Although, as Justice Cardozo once commented, "[t]he law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal," Wood v. Lucy, Lady Duff-Gordon, 222 N.Y. 88, 91 (1917), we nevertheless must and hereby do affirm the order of the lower court only upon those portions of its opinion dealing with issues properly raised in accordance with the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. ยง 1-406(a)(b)(c). The pertinent portions of Judge Weir's opinion follows:

"This action was instituted when the Pennsylvania Department of Transportation filed a Declaration of Taking against certain property located in Marshall Township, Allegheny County, Pennsylvania, to provide a right of way for Legislative Route 1021, Section 8R/W, a limited access highway, commonly known as Interstate Route 79 (I-79). The purpose of the project is to construct a vast interchange complex which will provide for connections between I-79 and Route 19, and also between the Pennsylvania Turnpike, I-79 and Route 19. A nearby industrial park known as RIDC Thorn Hill Industrial Park will also be connected to the interchange by a series of ramps. The project will cost approximately $19,000,000.00 dollars and is a 90-10 project, i.e., the federal government will supply 90% of the funds needed to finance the project and the Commonwealth of Pennsylvania will supply the remaining 10%.

"Elliot Hegedic, the condemnee, owns a two-thirds interest in one of the properties condemned and has a life estate in the remaining one-third interest in the property. The condemnee operates a restaurant on the property which, because of its advantageous location

[ 8 Pa. Commw. Page 554]

    abutting Route 19, provides him with a substantial yearly income. The condemnee filed preliminary objections asserting (1) the Declaration of Taking was defective as there was no allegation of compliance by the condemnor with the requirements of the United States, particularly P.L. 91-646; (2) the condemnation was not for a public purpose as it would primarily benefit the occupants of a nearby industrial park; and (3) the Eminent Domain Code is unconstitutional because it deprives the condemnee of just compensation for his property by excluding the capitalization of net profits as an element of compensation.

"The condemnee's objection that the Declaration of Taking is defective as it does not include an allegation of compliance with the Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally Assisted Programs Act (P.L. 91-646), Title 42 U.S.C.A. 4601 et seq.) is without merit. This Act is concerned with policies to be used or followed in condemnation proceedings where the federal government is the condemnor or where it provides money to the states for a federally assisted program. It specifically provides for certain business relocation expenses to be paid to businessmen whose business has been adversely affected by condemnation. There is no requirement that an allegation of compliance with the act be made in a Declaration of Taking. In fact, the Eminent Domain Code (26 P.S. 1-101 et seq.) was amended by the Act of December 29, 1971, to add Section VI A entitled ...


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