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COMMONWEALTH PENNSYLVANIA v. NOD'S INCORPORATED (06/20/74)

decided: June 20, 1974.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT,
v.
NOD'S INCORPORATED, A PENNSYLVANIA CORPORATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Beaver County in case of Re: Nod's Incorporated, a Pennsylvania corporation, v. Commonwealth of Pennsylvania, Department of Transportation, No. 1415 of 1971.

COUNSEL

Sandy W. Scichilone, Special Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for appellant.

Clarence D. Neish, for appellee.

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

Author: Rogers

[ 14 Pa. Commw. Page 193]

This is another case in which a landowner seeks damages for an alleged permanent interference with access depending on Section 612 of the Eminent Domain Code, Act of June 22, 1964, (Special Session), P.L. 84, 26 P.S. § 1-612.

Nod's Incorporated, owns a vacant tract of land containing about 21 acres situate in the Borough of Aliquippa, Beaver County. The land, with frontage of about 2300 feet, abuts the west side of Constitution Boulevard, a State highway. In 1970, the Commonwealth, by the Department of Transportation, widened Constitution Boulevard from three lanes to four lanes and constructed along the center line thereof a three foot high medial barrier. No opening in the barrier was provided at the location of the appellee's tract. After the improvement, northbound traffic on Constitution Boulevard desiring to enter Nod's land must proceed in that direction an additional two miles to an opening in the medial barrier, reverse its direction and travel the same distance to the property. Vehicles departing from the property intending to travel in a northerly direction must travel one-half of a mile to the south to another opening. There was no taking by the Commonwealth and, of course, the Commonwealth filed no declaration of taking.

Upon the appellee's petition, the lower court appointed a Board of View which, after hearings, filed a report awarding damages for interference with access and injury to surface support*fn1 in the amount of $37,500 plus compensation for delay in payment. The court below dismissed the Commonwealth's objections to the viewers' report and the Commonwealth has appealed.

[ 14 Pa. Commw. Page 194]

The Commonwealth contends that it has not interfered with access of the appellee's property to Constitution Boulevard and that its construction of the medial barrier has caused only diversion of traffic or circuitry of travel for which it is not answerable in damages.

The legal principles applicable in this kind of case have been thoroughly expounded in recent cases. They are stated by Chief Justice Jones in Wolf v. Department of Highways, 422 Pa. 34, 220 A.2d 868 (1966), a pre-Eminent Domain Code case but controlling here. In Wolf also the claim was based upon the Commonwealth's construction of a medial barrier, as part, however, of highway improvements which included a taking of part of the claimant's property. The Supreme Court concluded that the taking of a portion of the landowner's property bore no relationship to the construction and location of the medial barriers and was therefore unlike the situation in McCrady v. Department of Highways, 399 Pa. 586, 160 A.2d 715 (1960) where it was held that the construction of curbing within a condemned strip adjacent to the highway rendered the Commonwealth liable for damages for injury to access. The Supreme Court also held in Wolf, however, that the medial barrier causing circuitry of travel by some traffic on the road did not interfere with access.

In Hession Condemnation Case, 430 Pa. 273, 242 A.2d 432 (1968), cert. denied, 393 U.S. 1049 (1969), a post-Eminent Domain Code case involving Section 613, 26 P.S. § 1-613, which provides damages for vacation of public ways although no land is taken,*fn2 the Supreme Court, by Justice Roberts, explained Wolf as follows: "Recognizing that the Wolfs were in essence ...


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