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CONDEMNATION 2719 (08/01/75)

decided: August 1, 1975.

CONDEMNATION OF 2719, 2721 AND 2711 E. BERKSHIRE STREET BY THE PENNSYLVANIA DEPARTMENT OF TRANSPORTATION LEGISLATIVE ROUTE 1000, SECTION H-1 APPROACHES TO BETSY ROSS BRIDGE. RAYMOND AND FLORENCE COLLINS, EDWARD AND IDA HALL AND WALLACE AND JEAN GORSKI, APPELLANTS


Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of In Re: Premises 2719, 2721 and 2711 East Berkshire Street Alleged Condemnation by Pennsylvania Department of Transportation, Legislative Route 1000, Section H-1, No. 2604 February Term, 1974.

COUNSEL

David S. Winston, for appellants.

Louis J. Presenza, Special Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for appellee.

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

Author: Blatt

[ 20 Pa. Commw. Page 603]

Raymond and Florence Collins, Edward and Ida Hall and Wallace and Jean Gorski (landowners) appeal from an order of the Court of Common Pleas of Philadelphia. That court sustained preliminary objections filed by the Department of Transportation (Department) to the landowners' petition for the appointment of viewers.

The petition, filed on February 19, 1974, identified the petitioning landowners along with the locations of their respective properties on E. Berkshire Street. In addition, it alleged that:

"On or about August 1, 1973, and continuing to or about December 31, 1973, the Pennsylvania Department of Transportation (PennDot), through its agents, employees and contractors drove and placed into being numerous steel and concrete pilings and pillars as the support for ramps leading to and from the Betsy Ross Bridge. The use of driving, placing and other construction methods, in the immediate vicinity of the 2700 block East Berkshire Street caused injuries and damages to the dwellings then and there constituting private properties."

Furthermore, the petition asserted that a condemnation had taken place and the viewers ought to be appointed in order to assess damages. The landowners' right thereto is allegedly founded in Section 502(e) of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-502(e) which provides:

"(e) If there has been a compensable injury suffered and no declaration of taking therefor has been filed, a condemnee may file a petition for the appointment of viewers substantially in the form provided for in subsection (a) of this section, setting forth such injury."

The Department's preliminary objections assert that a single petition may not properly include three separate properties under separate ownership. The preliminary

[ 20 Pa. Commw. Page 604]

    objections also assert that the Commonwealth is not liable because there has been no taking and because the damages claimed are not those allowed by statute. On July 5, 1974 the lower court sustained the preliminary objections without ...


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