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RUSSELL P. STEIN v. COMMONWEALTH PENNSYLVANIA (05/19/76)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 19, 1976.

RUSSELL P. STEIN, TRUSTEE
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, SUCCESSOR TO DEPARTMENT OF HIGHWAYS. COMMONWEALTH OF PENNSYLVANIA, APPELLANT

Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Russell P. Stein, Trustee v. Commonwealth of Pennsylvania, Department of Transportation, No. 1938 March Term, 1973.

COUNSEL

Roger T. Shoop, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellant.

Edward Jay Weiss, for appellee.

Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 24 Pa. Commw. Page 525]

The procedural question raised by this appeal has been before this Court on innumerable occasions. We have held that the trial court must make an evidentiary record and resolve the issue of a de facto taking raised by preliminary objections, and not submit the issue to viewers. Petition of Ramsey, 20 Pa. Commonwealth Ct. 207, 342 A.2d 124 (1975); Nixon Hotel, Inc. v. Redevelopment Authority of Butler, 11 Pa. Commonwealth Ct. 519, 315 A.2d 366 (1974); Jacobs v. Nether Providence Township, 6 Pa. Commonwealth Ct. 594, 297 A.2d 550 (1972).

Since we have neither the benefit of a trial court evidentiary record nor an opinion, we must remand this matter to the Court of Common Pleas of Philadelphia County for reconsideration consistent with this opinion.

Reversed and remanded.

Disposition

Reversed and remanded.

19760519

© 1998 VersusLaw Inc.



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