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COMMONWEALTH PENNSYLVANIA v. SECURDA & COMPANY (12/06/74)

decided: December 6, 1974.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT,
v.
SECURDA & COMPANY, INC., APPELLEE



Appeal from the Order of the Court of Common Pleas of Berks County in case of Securda & Company, Inc. v. Commonwealth of Pennsylvania, Department of Transportation, No. 81 May Term, 1973.

COUNSEL

Lawrence R. Weider, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for appellant.

Alan I. Baskin, with him Baskin, Mendelsohn & Leisawitz, for appellee.

Judges Crumlish, Jr., Wilkinson, Jr. and Rogers, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 16 Pa. Commw. Page 41]

The Court of Common Pleas of Berks County dismissed preliminary objections of the Commonwealth of Pennsylvania, Department of Transportation (Commonwealth)

[ 16 Pa. Commw. Page 42]

    to a petition for the appointment of viewers filed by Securda & Company, Inc. (Securda). The Commonwealth appeals the decision to us.

On February 19, 1969, the Commonwealth filed a plan in the Office of the Recorder of Deeds in Berks County demarcating the right-of-way lines for that portion of Legislative Route 1075 passing through Berks County. Pursuant to this plan, the Commonwealth purchased or, where necessary, condemned all properties totally within the right-of-way lines, but postponed acquisition of those properties partially within the right-of-way lines pending approval of the final design plans by the Governor. Securda is the owner of property plotted as vacant building lots partially within the recorded right-of-way lines in a portion of Spring Township, Berks County, known as "Lincoln Park, Third Addition." On April 11, 1973, Securda filed a petition for the appointment of a board of view in the court below averring that the Commonwealth had formally condemned those portions of its property totally within the aforesaid right-of-way lines, but had not taken adjoining portions of its property not wholly within the lines, and had therefore effected a "de facto taking" of the latter property. The Commonwealth filed preliminary objections to the petition on the grounds that (1) it fails to aver that a declaration of taking was filed, (2) it fails to set forth the date of the alleged taking or the manner in which the property was taken, (3) it fails to set forth any facts which would entitle Securda to consequential damages, (4) it fails to set forth a cause of action under the Eminent Domain Code, and (5) that the board of viewers does not have jurisdiction. Following the filing of an answer by Securda, the parties entered into a stipulation of facts incorporating the related factual posture, and the Commonwealth further stipulated that it "shall acquire some of the Securda & Co., Inc. properties shown on the plan of Lincoln

[ 16 Pa. Commw. Page 43]

Park, 3rd edition . . . within the . . . right-of-way lines, and such additional property of condemnee as they [Commonwealth] may determine their needs to be." Upon a consideration of these averments and the facts stipulated to, the court below dismissed the preliminary objections. We reverse.

The issue before us is whether the averments of Securda's petition for the appointment of viewers, admitting as true all well pleaded facts but not conclusions of law, states a cause of action for a ...


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