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COMMONWEALTH PENNSYLVANIA v. EDWARD GAYESKI AND ALBA GAYESKI (09/26/75)

decided: September 26, 1975.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT,
v.
EDWARD GAYESKI AND ALBA GAYESKI, HIS WIFE, T/A REX CRAFT REALTY AND DEVELOPMENT COMPANY, APPELLEES



Appeal from the Order of the Court of Common Pleas of Luzerne County in case of Edward Gayeski and Anna Gayeski, his wife, trading as Rex Craft Reality and Development Company v. Commonwealth of Pennsylvania, Department of Highways, No. 1720 May Term, 1968.

COUNSEL

Edward D. Werblun, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellant.

Frank G. Harrison, with him Rosenn, Jenkins & Greenwald, for appellees.

Judges Crumlish, Jr., Wilkinson, Jr. and Rogers, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 21 Pa. Commw. Page 274]

This is an appeal by the Pennsylvania Department of Transportation (PennDOT) from the judgment entered in the Court of Common Pleas of Luzerne County on a jury verdict in favor of condemnees Edward and Alba Gayeski, trading as Rex Craft Realty & Development Company (Gayeski).

On August 11, 1953, then Governor John S. Fine approved a plan establishing a limited access highway through Avoca Borough, Luzerne County, designated as Route 780, Section 1. The plan was duly recorded in the office of the Recorder of Deeds.

The highway was thereupon constructed in the vicinity of property which the Gayeskis acquired sometime in or after 1959 and which is the subject of this suit. The Gayeski property abutted on Route 780 and also on a road known locally as Vine Street. When the Gayeskis acquired their property there was no obstruction at the intersection of Vine Street with Route 780.

On June 16, 1965, pursuant to the original plan filed in 1953 and a subsequent plan filed on January 9, 1963, PennDOT erected a fence at the intersection of Vine Street with Route 780, permanently interfering with access of the Gayeski property to Route 780 by that means.

The Gayeskis petitioned for a Board of View, claiming consequential damages for the permanent interference with their property's access to the highway as authorized by the Eminent Domain Code, Act of June 22, 1964, Special Session, P.L. 84, 26 P.S. ยง 1-612.

The Board of View awarded the Gayeskis damages of $48,000. The Gayeskis appealed and a traverse jury rendered a verdict for the Gayeskis in the amount of $20,000.

[ 21 Pa. Commw. Page 275]

PennDOT states two grounds for reversing the judgment below: (1) that predecessors in ownership of the Gayeski property were paid compensation for a taking of a portion of the property when the plan was filed in 1953; and (2) that any taking which may have occurred took place when the plan was filed in 1953, at which time the ...


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