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TOWNSHIP CHESTER v. COMMONWEALTH PENNSYLVANIA (06/26/75)

decided: June 26, 1975.

TOWNSHIP OF CHESTER, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Delaware County in case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, of Right of Way for Legislative Route 1018, Section A05, R/W, also known as Legislative Route 1018 Spur F-A05, a Limited Access Highway in Chester Township and the City of Chester, No. 7973 of 1973.

COUNSEL

Peter J. Nolan, for appellant.

Michael L. Brint, Special Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellee.

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

Author: Crumlish

[ 20 Pa. Commw. Page 61]

The Commonwealth of Pennsylvania (Commonwealth) proposes to build a connecting road between I-95, a major highway, and the 9th Street approach to the new Commodore Barry bridge, connecting Chester, Pennsylvania, and Bridgeport, New Jersey. Chester Township (Township), condemnee, owns and operates a public housing complex containing 150 housing units with 300 bedrooms in the area of the proposed construction. The Commonwealth filed its Declaration of Taking by which a portion of the Chester Township housing project was condemned to provide ramps to the bridge.

On July 31, 1973, the Commonwealth filed its Declaration of Taking. The Township, on August 29, 1973, filed preliminary objections to the power and authority of the Commonwealth to condemn, alleging that the method of appraisal that condemnor used to determine damages violated the constitutional rights of the condemnee because it failed to provide just compensation under the 5th Amendment of the U.S. Constitution, and Article I, Section 10, of the Pennsylvania Constitution.

The Commonwealth filed a reply and an answer to the preliminary objections maintaining that the procedure used by the condemnor to estimate just compensation does not affect the right or power to condemn, and, that preliminary objections may not be used to challenge the estimate of just compensation. By stipulation of record, the Commonwealth acknowledged that it used the fair market value method in arriving at its estimate of just compensation, and did not use the cost of replacement or substitute housing method.

[ 20 Pa. Commw. Page 62]

Argument, on the original preliminary objections, was heard on December 7, 1973. Pursuant to a suggestion of the Court, the parties attempted to enter into a stipulation which would have provided an expeditious resolution to the legal problem of just compensation. However, on January 4, 1974, the Commonwealth informed the Court that it could not enter into the proposed stipulation. Thereafter, the parties met on several occasions in an effort to reconcile their differences, and the Court was requested to withhold its ruling pending some amicable solution.

On February 11, 1974, the Township filed a petition seeking leave to file additional preliminary objections because of an alleged change of position by the Commonwealth. The Commonwealth in its answer February 21, 1974, denied a change of position, as alleged.

In April of 1974, the Township requested a hearing on the factual issues raised in its petition of February 11th. The Court fixed May 10, 1974, as the date for the hearing. After hearing, the Court permitted the Township to file additional objections, which it did on May 31, 1974. On June 17, 1974, the Commonwealth filed its answer denying any change of position by it. Prior to the taking, the parties attempted to reach damages agreement. The Township submitted its estimate of damages on the basis of the cost of construction of substitute facilities in the sum of $992,137.90 while the Commonwealth offered $137,700.00 as fair market value damages.

After argument before the court below, all issues raised by the original and additional preliminary objections were ...


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