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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA v. COMMONWEALTH PENNSYLVANIA (07/29/76)

decided: July 29, 1976.

IN RE: CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, OF RIGHT OF WAY FOR LEGISLATIVE ROUTE 115, SECTION 11A, IN CENTER TOWNSHIP, BEAVER COUNTY, PENNSYLVANIA. LOUIS J. ELIAS AND CATHERINE A. ELIAS, HIS WIFE; GEORGE ELIAS, JR. AND CYNTHIA ELIAS, HIS WIFE
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT



Appeal from the Orders of the Court of Common Pleas of Beaver County in case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, of Right of Way for Legislative Route 115, Section 11A, in Center Township, Beaver County, Pennsylvania, Louis J. Elias and Catherine A. Elias, his wife; George Elias, Jr. and Cynthia Elias, his wife v. Commonwealth of Pennsylvania, Department of Transportation, Nos. 759 and 760 of 1975, and 1276 of 1974.

COUNSEL

Benjamin B. Wechsler, Special Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellant.

Joseph M. Stanichak, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by President Judge Bowman.

Author: Bowman

[ 25 Pa. Commw. Page 606]

Appellees are owners of a parcel of real estate in Center Township, Beaver County on which an apartment house is located. The property in question abuts the intersection of Legislative Routes 115-11A and 76-22A.

On August 30, 1968, the Governor approved a plan entitled "Drawings Establishing Limited Access Highway

[ 25 Pa. Commw. Page 607]

& Authorizing Condemnation of Right of Way of Legislative Route 115-76 Section 11A R/W, 22A R/W in Beaver County" (first plan) which was filed in the recorder of deeds office.

Subsequently, on July 25, 1973, the Governor approved a successor plan (second plan) which also was filed in the county recorder of deeds office. No declaration of taking has been filed as to either of said plans. On January 9, 1975, a third plan was recorded which basically incorporated the design of the two prior plans. As the record does not include copies of these plans, we cannot ascertain with certainty whether the third plan does or does not include a physical taking of some frontage along appellees' property. This third plan is not before us in these consolidated appeals involving only the first and second plans. Similar doubt as to the first and second plans appears to be resolved by the pleadings which disclose that the completion of either of the first two plans would not encompass a physical taking of frontage of appellees' property, but would result in loss of unlimited access to the highway from appellees' property because of the limited access highway features of the plans.

On August 29, 1974, appellees filed a petition for the appointment of viewers pursuant to Section 502(e) of the Eminent Domain Code (Code), Act of June 22, 1964, Spec. Sess., P.L. 84, as amended, 26 P.S. ยง 1-502(e), asserting a compensable injury and a lack of a declaration of taking. Similarly, on April 28, 1975, appellees filed another petition pursuant to this section with respect to the second plan. To both petitions, the Pennsylvania Department of Transportation (PennDOT) filed preliminary objections contending that no compensable injury had occurred.

The court below treated both petitions in one opinion overruling PennDOT's ...


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