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PETITION JAMES E. RAMSEY AND KATHRYN H. RAMSEY (07/10/75)

decided: July 10, 1975.

IN RE: THE PETITION OF JAMES E. RAMSEY AND KATHRYN H. RAMSEY, HIS WIFE, APPELLEES, TENANTS BY THE ENTIRETIES, FOR THE APPOINTMENT OF VIEWERS TO ASCERTAIN DAMAGES TO THEIR LAND IN UNITY TOWNSHIP, WESTMORELAND COUNTY, PENNSYLVANIA, BY REASON OF THE USE OF AND LOCATION OF THE GLIDE PATH AND LANDING APPROACH OF THE WESTMORELAND COUNTY AIRPORT AUTHORITY. WESTMORELAND COUNTY AIRPORT AUTHORITY, APPELLANT


Appeal from the Order of the Court of Common Pleas of Westmoreland County in case of James E. Ramsey and Kathryn H. Ramsey, his wife, v. Westmoreland County Airport Authority, No. 1022 of 1974.

COUNSEL

Charles C. Mason, Jr., with him Robert P. Lightcap, and Lightcap, McDonald & Moore, for appellant.

William J. Ober, with him Scales and Shaw, for appellees.

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

Author: Bowman

[ 20 Pa. Commw. Page 209]

Averring a de facto or inverse condemnation of their property by appellant, Westmoreland County Airport Authority, appellee property owners filed a petition for the appointment of viewers pursuant to section 502(e) of the Eminent Domain Code, Act of June 22, 1964, Spec. Sess., P.L. 84, 26 P.S. ยง 1-502(e).

The Authority then filed preliminary objections to the petition raising a number of issues, including a demurrer, which objections were dismissed by the lower court. In its order dismissing the objections, the lower court also directed the Authority to plead over, and in its supporting opinion, stated that the matter should then proceed before viewers previously appointed. The Authority then took this appeal, raising essentially two issues.*fn1

Appellant initially contends that the lower court erred in concluding that the averments of the property owners' petition, taken as true, are sufficient as a matter of law to establish a de facto taking. Secondly, assuming the sufficiency of the property owners' petition, the lower court erred in not directing the property owners to plead with more particularity and in directing the matter to proceed before viewers without further evidentiary proceedings before the lower court. We affirm the lower court in not dismissing appellees' petition for the appointment of viewers, but for reasons herein expressed, reverse the lower court order directing appellant to plead over and proceed before viewers and remand for further pleadings and procedures before the court.

[ 20 Pa. Commw. Page 210]

In Jacobs v. Nether Providence Township, 6 Pa. Commonwealth Ct. 594, 297 A.2d 550 (1972), this Court delineated the responsibilities of lower courts when confronted with a petition for appointment of viewers to which preliminary objections had been filed. Therein we held that if a preliminary objection in the nature of a demurrer was filed, the lower court must first decide whether as a matter of law the averments of the petition, taken as true, are sufficient to state a cause of action of a de facto taking. If not, the preliminary objections must be sustained and the petition dismissed or possibly allow the petitioner to amend his pleading. If the averments, taken as true, might establish a de facto taking, the lower court must take evidence by deposition or otherwise so that a judicial determination might be made. If the averments on their face establish a de facto taking, then the preliminary objections must be dismissed as has happened in the case at bar.

Turning to the petition itself, appellee property owners identify the property in question as being in Unity Township, Westmoreland County, and by street number. They next allege that the airport is operated by appellant Authority; that appellant and its predecessor, the Tri-City Municipal Authority, constructed a runway at the airport, which runway deprives appellees of the peaceful use and enjoyment of their lands by reason of a glide path and landing approach established for airplanes utilizing the airspace over the airport "immediately" above appellees' property. Additionally, appellees allege that appellant installed lights and undefined "electronic devices" incident to the operation of the airport and that those lights and devices interfere with appellees' use and enjoyment of their land.

In our view, the lower court correctly concluded that petitioners' averments of the violation of the airspace immediately above their premises are sufficient to state a cause of ...


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