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JOSEPH J. PETERS AND MARIE H. PETERS ET AL. v. COMMONWEALTH PENNSYLVANIA (01/29/76)

decided: January 29, 1976.

JOSEPH J. PETERS AND MARIE H. PETERS ET AL., APPELLANTS,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF FORESTS AND WATERS, APPELLEES



COUNSEL

Thomas M. Garrity, Wisler, Pearlstine, Talone, Craig & Garrity, Norristown, Burton Spear, Renninger, Spear & Kupits, Doylestown, for appellants.

Francis J. Tarquini, Mabel Ditter Sellers, Ambler, for appellees.

Jones, C. J., and O'Brien, Pomeroy and Manderino, JJ. Eagen, Roberts and Nix, JJ., took no part in the consideration or decision of this case.

Author: Pomeroy

[ 465 Pa. Page 373]

OPINION

We here consider a challenge to the legality of condemnation by the Commonwealth of Pennsylvania for state park purposes of farm property owned by the appellants.

On December 30, 1970, as part of the land acquisition plan for the Evansburg State Park Project in Montgomery County, the Department of Forests and Waters*fn1 (Department), on behalf of the Commonwealth, filed a Declaration of Taking condemning 49.4 acres owned by Doctor and Mrs. Joseph Peters and their children. Except for the Peters' tract, which is known as "Skippack

[ 465 Pa. Page 374]

Creek Farms", all the land for the Evansburg Project was acquired by the Commonwealth under the Project 70 Land Acquisition and Borrowing Act, Act of June 22, 1964, Special Sess., P.L. 131, No. 8, 72 P.S. § 3946.1 et seq.*fn2 "Skippack Creek Farms" was also to have been a Project 70 acquisition according to preliminary notices received by the Peters from the Department. Ultimately, however, it was condemned pursuant to the then effective Section 1806(b) of the Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 466(b).*fn3 That section empowered the Department of Forests and Waters,

"[f]or the purpose of promoting healthful outdoor recreation and education, and making available for such use natural areas of unusual scenic beauty, especially such as provide impressive views, water falls, gorges, creeks, caves, or other unique and interesting features, to acquire, in the name of the Commonwealth, by purchase, gift, lease, or condemnation, any lands which, in the judgment of the department, should be held, controlled, protected, maintained and utilized as State park lands . . ."

To the Declaration of Taking the Peters filed preliminary objections alleging procedural irregularities and challenging the power of the Department to take their land under Section 1806(b). After a hearing, the court of common pleas of Montgomery County dismissed the preliminary objections, and this action was affirmed on

[ 465 Pa. Page 375]

    appeal by the Commonwealth Court. We granted allocatur limited to consideration of the extent of the Department's authority to ...


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