Appeal from the Order of the Court of Common Pleas of Northampton County, in case of Township of Palmer v. Commonwealth of Pennsylvania, Department of Transportation, No. 75 May Term, 1973.
Lawrence R. Weider, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for appellant.
Franklin S. Van Antwerpen, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by Judge Crumlish, Jr.
[ 16 Pa. Commw. Page 271]
The Commonwealth of Pennsylvania, Department of Transportation (Commonwealth) appeals from an order of the Court of Common Pleas of Northampton County which dismissed its preliminary objections to a petition for the appointment of viewers filed by Palmer Township (Township), a township of the second class within Northampton County.
On August 16, 1973, the Township petitioned for the appointment of a board of viewers, and by order of court viewers were appointed eo die. The petition alleged that as a result of the Commonwealth's construction of Route 33, a state highway, and connecting ramps to U.S. Route 22, surface waters have been "altered, collected, diverted and concentrated" upon six roadways dedicated to and maintained by the Township. This diversion and concentration of surface waters has allegedly interfered with the use and maintenance of the roads so as to constitute an "injury" for which just compensation must be paid under our Federal and State Constitutions, and the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-101 et seq. (Supp. 1974-1975). Neither the pleadings nor the proceedings below indicate the distance each township road is from Route 33, but counsel for the Township has stipulated that none of the roads abut Route 33. The Commonwealth duly filed the instant preliminary objections alleging, inter alia, (1) that the petition fails to set forth a claim for consequential damages under Section 612 of the Eminent Domain Code, 26 P.S. § 1-612; and (2) that the property allegedly damaged was not "private property," and hence is not entitled to the payment of just compensation.
The issue for our determination is whether the above averments, admitting as true all well and clearly pleaded
[ 16 Pa. Commw. Page 272]
facts but not conclusions of law,*fn1 state a cause of action for compensable injury under the Eminent Domain Code, Article I, Section 10 of the Pennsylvania Constitution,*fn2 or the Fifth Amendment of the United States Constitution.*fn3
It is immediately apparent that the Commonwealth is not liable for consequential damages under Section 612 of the Eminent Domain Code inasmuch as the Township has stipulated that the roadways allegedly affected by the drainage from Route 33 do not abut the highway or its improvements. Section 612, which expanded the Commonwealth's liability to consequential damages where none had existed prior to the passage of the Eminent Domain Code, provides as follows: "All condemnors including the Commonwealth of Pennsylvania, shall be liable for damages to property abutting the area of an improvement resulting from change of grade of a road or highway, permanent interference with access thereto, or injury to surface support, whether or not any property is taken." (Emphasis supplied.) 26 P.S. § 1-612 (Supp. 1974-1975). Because it is admitted that the property here does not abut the area of improvement, it is clear that the Commonwealth is not liable for consequential damages absent an actual "taking" of the Township's property. Pane v. Department of Highways, 422 Pa. 489, 222 A.2d 913 (1966).
[ 16 Pa. Commw. Page 273]
Nor do we find from an examination of the facts well pleaded that a "taking" in the constitutional sense has occurred.*fn4 In Ewalt v. Pennsylvania Turnpike Page 273} Commission, 382 Pa. 529, 115 A.2d 729 (1955), an action in equity was instituted against the Turnpike Commission to compel it to restore a private plaintiffs' stream-fed lake to its condition prior to the construction of a turnpike extension. The complaint averred that as the result of cuts and fills left exposed during construction of the highway, and while in operation, large quantities of water runoff and erosion had polluted the creek ...