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GORDON H. MCGOWAN AND ELIZABETH A. MCGOWAN v. COMMONWEALTH PENNSYLVANIA (03/23/76)

decided: March 23, 1976.

GORDON H. MCGOWAN AND ELIZABETH A. MCGOWAN
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT. RONALD G. FRICKER AND BEATRICE M. FRICKER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT



Appeals from the Orders of the Court of Common Pleas of Montgomery County in cases of Gordon H. McGowan and Elizabeth A. McGowan v. Pennsylvania Department of Transportation and Secretary of Transportation of Commonwealth of Pennsylvania, No. 74-7728, and Ronald G. Fricker and Beatrice M. Fricker v. Pennsylvania Department of Transportation and Secretary of Transportation of Commonwealth of Pennsylvania. No. 74-7729.

COUNSEL

William P. Culp, Jr., Special Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellants.

James J. Oliver, with him Wright, Manning & Sagendorph, for appellees.

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

Author: Bowman

[ 24 Pa. Commw. Page 155]

In each of these appeals, consolidated for argument, the individual property owners had filed petitions for the appointment of viewers to which the Pennsylvania Department of Transportation (PennDOT) interposed preliminary objections and additional preliminary objections raising both issues of fact and of law.

From the lower court's dismissal of PennDOT's additional preliminary objections*fn1 raising limitation of suit, PennDOT has appealed to this Court.

[ 24 Pa. Commw. Page 156]

For want of an evidentiary record or essential facts admitted by the pleadings to support its decision, we must reverse the lower court's order and remand these eminent domain cases for further proceedings. Jacobs v. Nether Providence Township, 6 Pa. Commonwealth Ct. 594, 297 A.2d 550 (1972).

In each of the petitions seeking the appointment of viewers, the property owners appear to assert as the legal basis of their claim, a de facto taking for which they are entitled to seek the appointment of viewers to assess damages pursuant to Section 502(e) of the Eminent Domain Code,*fn2 i.e., a substantial interference with their use and enjoyment of their property by PennDOT incident to a road widening highway project involving a thirteen foot wide strip along the frontage of their properties. However, the absence of critical factual averments in these petitions in support of a right of recovery under a de facto theory suggests the possibility that the property owners may also be asserting a legal theory of their entitlement to just compensation following a formal condemnation.

Equally imprecise preliminary objections and a specific additional preliminary objection filed by PennDOT lend uncertainty to the legal defenses raised by PennDOT, and petitioners' "answers" to the original preliminary objections lend no clarity to the legal theory upon which they advance their cause.

Without essential facts admitted by the pleadings and without conducting an evidentiary hearing or otherwise supplying facts essential to resolution of either of the possible theories advanced by the property owners, the lower court, relying upon representation of facts apparently advanced by counsel ...


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