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FRANCIS J. BLANK v. COLUMBIA GAS PENNSYLVANIA (01/02/74)

decided: January 2, 1974.

FRANCIS J. BLANK, APPELLANT,
v.
COLUMBIA GAS OF PENNSYLVANIA, INC., APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Columbia Gas of Pennsylvania, Inc., Condemnor, v. Francis J. Blank, Condemnee, No. 631 July Term, 1972.

COUNSEL

James C. Larrimer, with him Dougherty, Larrimer & Lee, for appellant.

David S. Watson, with him Thorp, Reed & Armstrong, for appellee.

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

Author: Kramer

[ 11 Pa. Commw. Page 305]

This is an appeal filed by Francis J. Blank (Blank) from an order of the Court of Common Pleas of Allegheny County, dated February 26, 1973, wherein Blank's preliminary objections to the petition for approval of bond filed by Columbia Gas of Pennsylvania, Inc. (Columbia) were "dismissed without prejudice to the right to obtain the just compensation allowable to him [Blank] by law for the easement acquired over their [Blank's] property."

This is an eminent domain proceeding in which Blank, as a property owner and condemnee, is challenging the power of Columbia to condemn a portion of Blank's residential property for a right-of-way to lay an underground 12-inch gas line. Columbia is a natural gas public utility incorporated under the Act of May 29, 1885, P.L. 29, § 1, as amended, 15 P.S. § 3541 under which act it is given the power: "Fifth . . . [T]o have and possess the right also to enter upon, take and occupy such lands, easements and other property as may be required for the purpose of laying its pipes for transporting and distributing gas." See also the Business Corporation Law, Act of May 5, 1933, P.L. 364, § 322, as amended, 15 P.S. § 1322(A)(2).

[ 11 Pa. Commw. Page 306]

After having followed all the procedures required by law, Columbia filed its Petition for Approval of Bond to be Regarded as Declaration of Taking, fully disclosing a descripton of the land of Blank to be taken for the said right-of-way. Columbia's bond was approved and filed pursuant to an order of court dated April 17, 1972. Notice of the approval and filing of the bond, together with a notice of Blank's right to file preliminary objections, were served upon Blank. Blank filed preliminary objections wherein he alleged that Columbia owned and maintained a right-of-way adjacent to Blank's property thereby obviating any need or necessity for the condemnation of Blank's property. Blank challenged the authority of Columbia to condemn and also asserted that such condemnation was for the accommodation of Blank's neighboring property owners, rather than for the purposes of Columbia. Extensive hearings were held before the court below, after which the court filed its opinion and order.

In the court's opinion, it was properly found from the record that the existing 12-inch gas pipeline was installed under a right-of-way dating back to December 22, 1888. Although the record is not clear whether the existing pipe was installed in 1888, the record certainly establishes that with the possible exception of repairs and minor replacements, the pipe is more than 80 years old. The existing pipe runs between two houses, constructed circa 1947, one of which is adjacent to Blank's property. The space between these two houses is approximately 12 feet in width. To the rear of these two houses, there is a retaining wall and land consisting of a land fill created subsequent to the laying of the original pipeline. No one has raised any question on Columbia's assertion that the existing 12-inch pipeline is in need of replacement.

In dismissing the preliminary objections, the lower court held that the record failed to disclose "an arbitrary

[ 11 Pa. Commw. Page 307]

    or capricious exercise of discretion" by Columbia sufficient to invalidate the exercise of the condemnation power ...


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