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CONDEMNATION 1.6 ACRES LAND SITUATE DERRY TOWNSHIP (07/24/75)

decided: July 24, 1975.

CONDEMNATION OF 1.6 ACRES OF LAND SITUATE IN DERRY TOWNSHIP, DAUPHIN COUNTY, PENNSYLVANIA, BY THE LOWER DAUPHIN SCHOOL DISTRICT. WILLIAM G. ALBRIGHT, SIMON RHOADS, ISAAC W. ALBRIGHT AND CLAUDE M. BASLER, APPELLANTS


Appeal from the Order of the Court of Common Pleas of Dauphin County in case of In Re: Condemnation of 1.6 Acres of Land Situate in Derry Township, Dauphin County, Pennsylvania, by the Lower Dauphin School District, No. 159 June Term, 1973.

COUNSEL

Herbert A. Schaffner, with him Reynolds, Bihl & Schaffner, for appellants.

Thomas D. Caldwell, Jr., with him Caldwell, Clouser & Kearns, for appellee.

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

Author: Rogers

[ 20 Pa. Commw. Page 420]

William G. Albright, Simon Rhoads, Issac W. Albright and Claude M. Basler have appealed from an order of the Court of Common Pleas of Dauphin County dismissing their preliminary objections attacking the lawfulness of the taking by the Lower Dauphin School District of land containing one and six tenths of an acre in Derry Township for school purposes.

The preliminary objections raised a number of questions, the disposition of which by the court below are not contested by the appellants here. Those still advanced are: (1) whether the appellee School District sought approval of the Department of Education before condemning the tract in question, (2) whether the appellants have standing to object to the taking on the asserted ground that the School District did not comply with regulations of the Department of Education, and (3) whether the failure of the School District to obtain prior approval by the Department of Education of the condemnation was a violation of departmental regulations rendering the District powerless to condemn.

[ 20 Pa. Commw. Page 421]

Since the lower court found, as the appellants contended, that the District in fact did not seek prior departmental approval we need not discuss the first question.*fn1 As for the second question concerning standing, we merely observe that, as the quoted portion of the lower court's opinion hereinafter reproduced demonstrates, the order below was not based on a determination that the appellants lacked standing. It was grounded rather on the Court's negative answer to the third question here posed -- whether under the law the School District's power to condemn was vitiated by its failure to obtain the prior approval of the Department. Judge Dowling correctly disposed of this question and we adopt the following portions of his opinion as an extremely able and very thorough consideration of the subject:

"We must now consider what effect the failure to seek approval has on the school district's right to condemn the tract; it already having been decided that such condemnation was for lawful school purposes. The condemnor argues that such regulations which condemnees claim were not complied with deal solely with approval required for school site acquisition and construction if a school district desires monetary reimbursement for such site acquisition. When the school district sought approval in August, 1969, Regulation 3-450 n.6 was in effect. This

[ 20 Pa. Commw. Page 422]

    was supplemented by regulations issued September 11, 1970. n.7 [Footnote 6 "3.450 Approval of Sites.

"1. The current and projected requirements of property acquisition to provide sites for new schools and related facilities shall be established as ...


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