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COMMONWEALTH PENNSYLVANIA v. RICHARD KASTNER (05/20/74)

decided: May 20, 1974.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT,
v.
RICHARD KASTNER, T/A LIBERTY BELL DISCOUNT AND CHARLES PODHAIZER, T/A BIG C DISCOUNT DEPARTMENT STORE, APPELLEES



Appeal from the Order of the Court of Common Pleas of Bucks County in case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation (formerly Department of Highways), for Right of Way for Legislative Route 252, Section 10-A, in Bensalem Township, Bucks County, Pennsylvania. Premises of Richard Kastner, t/a Liberty Bell Discount, and Charles Podhaizer, t/a Discount Department Store, Tenant, described in Deed Book 1725, Page 231, No. 403 December Term, 1970.

COUNSEL

George Bristol, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for appellant.

David H. Moskowitz, for appellee.

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

Author: Wilkinson

[ 13 Pa. Commw. Page 527]

Appellees-condemnees' property, containing approximately eight acres on which is erected a sixty thousand square foot farmers' market and discount store with the remaining surface improved as hard surface parking, is located on the northerly side of Street Road near its intersection with U.S. Route 1 in Bucks County. Appellees-condemnees are the owners of the tract and the tenant. The Commonwealth has constructed a "bypass" for traffic on Street Road, vacating its old crossing of U.S. Route 1 and erecting a barrier where it previously crossed. The lower court, in its opinion, accurately portrayed the before and after condition with regard to this road network with the following diagrams:

[ 13 Pa. Commw. Page 528]

Appellees-condemnees filed a petition for appointment of a Board of View pursuant to Section 504 of the Eminent Domain Code, Act of June 22, 1964, P.L. 84, Special Sess., 26 P.S. § 1-504. The Board of View was appointed and two hearings were held. Appellees-condemnees presented the testimony of two experts who testified that the appellees-condemnees had suffered a $340,000.00 or $350,000.00 loss as a result of

[ 13 Pa. Commw. Page 529]

    the change in the road network. The Commonwealth did not present any testimony, taking the position that the appellees-condemnees did not suffer any compensable damages. The Board of View concluded that the appellees-condemnees were not entitled to any damages under either Section 612 or Section 613 of the Eminent Domain Code, 26 P.S. § 1-612 or § 1-613.

On appeal to the Court of Common Pleas from the decision of the Board of View, it was stipulated that no questions of the constitutionality of Section 612 or Section 613 of the Eminent Domain Code would be raised, and the sole issue before the court below was the same as it is here, i.e., did the relocation of Street Road result in such substantial interference with access to appellees-condemnees' property so as to entitle them to compensation under Sections 612 and 613 of the Eminent Domain Code? The lower court found that it did, sustained the appeal from the Board of View, and referred the case back to the Board for the determination of the amount to which appellees-condemnees were entitled. We must reverse.

The case has been exceptionally well presented to the Board of View, exceedingly well analyzed and discussed by the Board of View in its decision and by the able court below in its opinion, as well as forcefully briefed and argued before this Court. This Court feels that the holding of our Supreme Court in Hession Condemnation Case, 430 Pa. 273, 242 A.2d 432 (1968), cert. denied, 393 U.S. 1049 (1969), is controlling. It is agreed by all parties that no land has been taken, there has been no change in grade, and there has been no injury to surface support. It is entirely a matter of access.

No good purpose would be served by here repeating Justice Roberts' clear exposition of the law relating to this case in his opinion in Hession. He expressly dealt with ...


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