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ROBERT S. BRILL AND DOLORES BRILL v. COMMONWEALTH PENNSYLVANIA (12/05/75)

decided: December 5, 1975.

ROBERT S. BRILL AND DOLORES BRILL, HUSBAND AND WIFE
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT



Appeal from the Order of the Court of Common Pleas of Luzerne County in case of Robert S. Brill and Delores Brill, his wife, v. Commonwealth of Pennsylvania, Department of Transportation, No. 1513 of 1973.

COUNSEL

Patrick J. Lavelle, Special Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellant.

Pasco L. Schiavo, for appellees.

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

Author: Blatt

[ 22 Pa. Commw. Page 203]

This is an action in which landowners Robert S. Brill and Dolores Brill seek condemnation damages for the consequences of the widening of a road passing in front of their property.

The Brill property is located on the north side of legislative route 40176 commonly known as Airport Road in Sugarloaf Township, Luzerne County. In late 1969 or early 1970 the Pennsylvania Department of Transportation (Penn DOT) commenced widening the route from a two-lane undivided highway to a four-lane divided highway. Although no property of the Brills was actually taken and no condemnation proceeding was initiated by

[ 22 Pa. Commw. Page 204]

PennDOT as to their property, the construction resulted in a change of grade of the highway in front of the property. Moreover, the erection of a two-foot high medial barrier along the center of the highway cut off immediate access to and from the property from the eastbound lanes. The Brills, therefore, petitioned the Court of Common Pleas of Luzerne County for the appointment of viewers to assess damages pursuant to Section 612 of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended. 26 P.S. ยง 1-612.

On March 13, 1973 a board of three viewers was appointed, and it subsequently reported that the Brills were entitled to $3,750.00 in damages. PennDOT and the Brills both appealed from the viewers' report and requested a jury trial, which was granted. The jury returned a verdict in favor of the Brills in the single amount of $15,000, which was based upon special findings that the Brills suffered compensable damages from the change of grade and from permanent interference with access to and from the highway. PennDOT moved for a new trial which the Court of Common Pleas of Luzerne County, sitting en banc, denied. This appeal followed.

In an appeal from a denial of a motion for a new trial, our scope of review is limited to a determination as to whether or not the court below committed a manifest abuse of discretion or made a clear error of law. Redevelopment Authority of the City of Erie v. Pulakos, 17 Pa. Commonwealth Ct. 251, 330 A.2d 869 (1975); Cohen v. Redevelopment Authority of the City of Philadelphia, 12 Pa. Commonwealth Ct. 125, 315 A.2d 372 (1974). PennDOT concedes liability for damages resulting from the change of grade but argues that the lower court erred in allowing the jury to consider damages from "permanent interference with access" to the Brill property resulting from the erection of the medial barrier.

It is clear from all of the evidence that, prior to the erection of the medial barrier, ...


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