Appeal from order of Commonwealth Court, No. 17, C.D. 1972, affirming order of Court of Common Pleas, Civil Division, of Allegheny County, April T., 1971, No. 2767, in case of Conroy-Prugh Glass Company v. Commonwealth of Pennsylvania, Department of Transportation.
J. Craig Kuhn, with him Kuhn, Engle, Blair and Stein, for appellant.
Andrew L. Weil, Special Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien. Mr. Chief Justice Jones and Mr. Justice Eagen dissent. Mr. Justice Pomeroy took no part in the consideration or decision of this case.
Appellant, Conroy-Prugh Glass Company (Conroy), is the owner of two four-story interconnected industrial buildings located at 1430 Western Avenue in the City of Pittsburgh, near the northern end of the West End Bridge on Pittsburgh's Northside. According to appellant,*fn1 beginning in 1959, the Commonwealth of Pennsylvania has promulgated, publicized, and partly carried into execution, plans for the extension of the Ohio River Boulevard on both sides of appellant's property, but the construction of the interchange between the West End Bridge and the Ohio River Boulevard has not yet been started. Since 1963, the Commonwealth has submitted seven alternative plans for the section of the extension of the proposed highway which includes the interchange, but none has yet been formally approved. Each of the seven alternative proposals involves a complete taking of appellant's property.
The proposed extension of the Ohio River Boulevard has been widely publicized in the Pittsburgh papers, because it seriously affects the economic future of Pittsburgh's Northside area. Prior to the beginning of the publicity about the highway program, appellant received rental income in excess of $30,000 in the years 1960, 1961 and 1962, when seventy percent of the useable floor space was occupied. By reason of the public announcements made by the Commonwealth throughout the 1960's, and particularly the publicizing of the preliminary design plans for the extension of the Ohio River Boulevard, appellant began to lose tenants at an
accelerated rate so that, during the years 1966 and 1967, only fifty percent of the useable floor space was occupied and, in the years 1968, 1969 and 1970, occupancy was so diminished that rentals did not cover taxes and operating expense. In 1971, the property was listed for sale by the Treasurer's Office of the City of Pittsburgh. Finally, on March 7, 1971, appellant filed a petition for the appointment of viewers under § 502(e) of the Eminent Domain Code of 1964, 26 P.S. § 1-502(e), alleging that the Commonwealth had effected a taking of its property, but had not filed a declaration of taking. The Commonwealth filed preliminary objections to the petition for the appointment of viewers, alleging, inter alia, that appellant had failed to set forth a cause of action under the Eminent Domain Code, and failed to set forth the date of the alleged taking or in what manner the alleged taking occurred.
Appellant then filed a request for admissions consisting of nine requests concerning some of the aboverelated facts about the preliminary designs and the publicity concerning the proposed extension of the Ohio River Boulevard, to most of which the Commonwealth agreed. Appellant then filed a motion for summary judgment and an affidavit containing the above-related facts concerning the rental history of the property during the period immediately prior to and after the publicizing of the proposed highway extension and the fact that the loss of rents had led to the property's being listed for Treasurer's Sale. After argument, the Court of Common Pleas of Allegheny County sustained the Commonwealth's preliminary objections and denied appellant's motion for a summary judgment, reasoning that the facts presented by appellant did not "give rise to such 'exceptional circumstances' as would constitute a de-facto taking of appellant's property."
Appellant then appealed to the Commonwealth Court, which affirmed the decision of the Court of
Common Pleas of Allegheny County. Conroy-Prugh Glass Co. v. Commonwealth, 7 Pa. Commonwealth Ct. 66, 298 A.2d 672 (1972). We granted allocatur because of ...