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

COMMONWEALTH COURT OF PENNSYLVANIA


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, the Brill property was

[ 22 Pa. Commw. Page 205]

    accessible directly from both the eastbound and the westbound lanes of Airport Road. The construction of the barrier, however, blocked direct access to and from the eastbound lanes and, as a result, a vehicle exiting from the Brill property and desiring to travel east on Airport Road is now required to travel west approximately one mile and a half to the nearest intersecting road where it may turn around and then head east. PennDOT argues that such circuitry of access does not entitle the Brills to damages for "permanent interference with access," under Section 612 of the Eminent Domain Code.

The law in this area is well established. In Wolf v. Department of Highways, 422 Pa. 34, 220 A.2d 868 (1966) our Supreme Court stated:

"Where land is taken or purchased for highways, the abutting owner retains, as an incident to ownership of the remainder of his land, the right of access, or of ingress and egress. This right cannot be taken from him unless compensation is made therefor under the law. It is a property right, protected by the constitution. Such right of access does not entitle the abutting owner to access at all points along the highway; it does entitle him to access, by reasonable and conventional means, to his property from the highway and from his property to the highway." Wolf, supra, 422 Pa. at 39, 220 A.2d at 871. (Citations omitted.) (Emphasis in original.)

Although Wolf preceded the Eminent Domain Code, its principles control the application of Section 612. Hession Condemnation Case, 430 Pa. 273, 242 A.2d 432 (1968); Department of Transportation v. Nod's Incorporated, 14 Pa. Commonwealth Ct. 192, 321 A.2d 373 (1974). We have previously held that a property owner's right of access "has never extended further than the right to enter upon the highway or to leave it and have reasonable connection to the public road system." Nod's Incorporated, supra., 14 Pa. Commonwealth Ct. at 196, 321 A.2d at 375. (Citations

[ 22 Pa. Commw. Page 206]

    omitted.) (Emphasis in original.) It is also apparent that a property owner is simply not entitled to compensation under Section 612 where access to the property is restricted to circuitous routing rather than by a direct route. In Nod's Incorporated, vehicles seeking access to the subject property from one side of a highway were diverted four miles as a result of the construction of a medial barrier, and yet we held that such circuitous access was not compensable. We can discern little difference in this case, and we believe, therefore, that the court below erred in not granting a new trial.

Because interference with access to and from the Brill property is not compensable under Section 612 of the Eminent Domain Code, the decision and order of the Court of Common Pleas of Luzerne County is reversed and this case is remanded to that court for a new trial limited to a determination of the damages suffered by Robert S. Brill and Dolores Brill resulting from the change in grade of Airport Road where it abuts their property.

Disposition

Reversed and remanded.

19751205

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