Appeal from the order of the Court of Common Pleas of Luzerne County in case of Timothy J. Reilly and J. Emmett Reilly, co-partners, trading and doing business as Reilly Contracting Co. v. Commonwealth of Pennsylvania, Department of Environmental Resources and The General State Authority, No. 4100 of 1973.
H. Warren Ragot, Assistant General Counsel, with him Michael A. Madar, General Counsel, for appellant, The General State Authority.
John W. Carroll, Assistant Attorney General, for appellant, Department of Environmental Resources.
Thomas L. Kennedy, with him Cletus M. Lyman, Cletus P. Lyman and Walter L. Lyman, for appellees.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer.
[ 21 Pa. Commw. Page 612]
In Jacobs v. Nether Providence Township, 6 Pa. Commonwealth Ct. 594, 297 A.2d 550 (1972), we held that
[ 21 Pa. Commw. Page 613]
the trial court faced with preliminary objections to a petition for appointment of a board of viewers in a de facto condemnation case must judicially determine as a threshold legal issue whether or not there has been a de facto "taking" or compensable injury within the meaning of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-101 et seq. Our Jacobs holding controls the present appeal.
Appellees own property in Luzerne County which, before November 15, 1967, was part of an area zoned "S-1 Suburban Residence District." Appellees alleged in their petition for the appointment of viewers that the Pennsylvania Department of Forests and Waters, now the Department of Environmental Resources, caused the Board of Commissioners of Luzerne County to rezone so that appellees' property became a part of a "C-1 Conservation District." Appellees claim the action of representatives of the Commonwealth in causing rezoning of their property constituted a condemnation and complete acquisition of their property as of November 15, 1967.
[ 21 Pa. Commw. Page 614]
On June 15, 1973, appellees filed a petition for the appointment of viewers and, on July 10, 1973, The General State Authority filed preliminary objections asserting that the change of zoning affecting appellees' property did not constitute a "taking" and, therefore, appellees failed to state a cause of action. On September 19, 1973, the trial court, without taking evidence, dismissed the "Defendants" preliminary objections. In its order of dismissal the trial court stated, inter alia : "Plaintiffs [appellees] having pleaded facts sufficient to constitute a taking of their property by the Defendants [appellants], all of Defendants' Preliminary Objections are Dismissed." (Emphasis added.) In its opinion in support of this order the trial court explained its reasoning for dismissing the preliminary objections by this statement: "It is the opinion of the Court that the Petitioners [appellees] have very plainly, clearly, and extensively pleaded facts, which Page 614} if proven, will entitle them to relief under the authorities above cited." (Emphasis added.)
It is obvious that the trial court reached its ruling on the preliminary objections on the basis of "pleaded facts" which "if proven" would constitute a de facto "taking." This view left to the viewers the determination that must initially be made by the trial court. In Jacobs v. Nether Providence Township, supra, we dealt with the situation where the trial court concludes that the averments of a property owner's petition, if proven, may or ...