decided: September 13, 1976.
IN RE: THE MATTER OF THE CONDEMNATION OF 14 EAST MAPLE STREET, NEW CASTLE, PENNSYLVANIA, BEING THE PROPERTY OF: JOSEPH P. AND MARY MONACO
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION. THE COMMONWEALTH OF PENNSYLVANIA, APPELLANT
Appeal from the Order of the Court of Common Pleas of Lawrence County in case of In Re: The Matter of the Condemnation of 14 East Maple Street, New Castle, Pennsylvania, being the Property of Joseph P. and Mary Monaco v. Commonwealth of Pennsylvania, Department of Transportation, No. 204 of 1973.
Jeffrey L. Giltenboth, Special Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellant.
Thomas M. Piccione, with him Shumaker, Shumaker & Piccione, for appellees.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by Judge Blatt.
[ 26 Pa. Commw. Page 389]
In 1973, the Commonwealth of Pennsylvania, Department of Transportation (PennDOT), completed the construction of a viaduct near property owned by Joseph P. Monaco and Mary Monaco, husband and wife, in the City of New Castle, Pennsylvania. On October 4, 1973, the Monacos petitioned the Court of Common Pleas of Lawrence County for the appointment of a Board of Viewers to assess the damage to their property caused by the construction and operation of the viaduct. PennDOT filed preliminary objections to the petition, the Monacos' depositions were taken and the lower court issued an order, dated October 20, 1975, which dismissed the objections.*fn1 PennDOT has appealed.
The Monacos claimed damages*fn2 due to a "defacto" taking of their personal residence, and the business operated therefrom, pursuant to Section 502(e) of the
[ 26 Pa. Commw. Page 390]
Eminent Domain Code*fn3 (Code), 26 P.S. § 1-502(e), which provides as follows:
"If there has been a compensable injury suffered and no declaration of taking therefor has been filed, a condemnee may file a petition for the appointment of viewers . . . setting forth such injury."
The Monacos further claimed damages for a "change of grade" due to the construction of the viaduct pursuant to Section 612 of the Code, 26 P.S. § 1-612, which provides as follows:
"All condemnors, including the Commonwealth of Pennsylvania shall be liable for damages to property abutting the area of an improvement resulting from change of grade of a road or highway, permanent interference with access thereto, or injury to surface support, whether or not any property is taken." (Emphasis added.)
The procedure to have been followed in the lower court was succinctly presented by President Judge James S. Bowman in In Re: Petition of James E. Ramsey, 20 Pa. Commonwealth Ct. 207, 210, 342 A.2d 124, 126 (1975) as follows:
"In Jacobs v. Nether Providence Township, 6 Pa. Commonwealth Ct. 594, 297 A.2d 550 (1972), this Court delineated the responsibilities of lower courts when confronted with a petition for appointment of viewers to which preliminary objections had been filed. Therein we held that if a preliminary objection in the nature of a demurrer was filed, the lower court must first decide whether as a matter of law the averments of the petition, taken as true, are sufficient to state a cause of action of a de facto taking. If not, the preliminary objections must be sustained and the petition dismissed or possibly allow the petitioner to
[ 26 Pa. Commw. Page 391]
amend his pleading. If the averments, taken as true, might establish a de facto taking, the lower court must take evidence by deposition or otherwise so that a judicial determination might be made." Accord, City of Philadelphia v. Airportels, Inc., 14 Pa. Commonwealth Ct. 617, 322 A.2d 727 (1974).
As to whether or not there has been a "de facto" taking, it has been previously held that where an entity, clothed with the power of eminent domain, exercises that power and the immediate, necessary, and unavoidable consequence of that exercise is to destroy, injure or damage private property so as to substantially deprive an owner of the beneficial use and enjoyment thereof, an "inverse condemnation" or "de facto" taking of said property has occurred and just compensation must be paid. Conroy-Prugh Glass Company v. Commonwealth, 456 Pa. 384, 321 A.2d 598 (1974); Condemnation of 2719, 2721 and 2711 E. Berkshire Street, 20 Pa. Commonwealth Ct. 601, 343 A.2d 67 (1975); In Re: Petition of Cornell Industrial Electric, Inc., 19 Pa. Commonwealth Ct. 599, 338 A.2d 752 (1975); Commonwealth's Crosstown Expressway Appeal, 3 Pa. Commonwealth Ct. 1, 281 A.2d 909 (1971). In their petition, the Monacos here alleged that
"as a result of the construction of said highway . . . and the continued use, maintenance and operation of said highway, the petitioner's residence has settled, cracked, become weakened and been otherwise damaged, and will . . . continue to settle, crack, weaken and be otherwise damaged."
Their testimony, taken by deposition, asserts that their property is located about 35 feet from the viaduct, that it has been damaged by dust, noise, and vibration caused by the construction and use of the viaduct, and that they have been substantially deprived of the use and benefit of their property.
[ 26 Pa. Commw. Page 392]
After a trial court has determined that the factual averments of a petition state a legal cause of action, all factual disputes raised by the pleadings must be resolved, and then the court must answer the legal question of whether or not a de facto taking has occurred before the matter may proceed to the board of view. In Re: Petition of James E. Ramsey, supra. Although the lower court here apparently made the threshold determination that a legal cause of action had been stated and it therefore "overruled" PennDOT's objections, we are unable to determine from an examination of its opinion whether or not it has made findings on the factual averments of the Monacos and whether or not it has determined as a matter of law that a "de facto" taking has occurred.*fn4
As to consequential damages, the Commonwealth is liable for such, pursuant to Section 612 of the Code, only when the affected property abuts the area of improvement and the damages suffered are those enumerated in the statute. Condemnation of 2719, 2721 and 2711 E. Berkshire Street, supra; Commonwealth v. Township of Palmer, 16 Pa. Commonwealth Ct. 270, 329 A.2d 871 (1974). It is necessary that the trial court determine the facts and then rule as a matter of law as to whether or not Section 612 damages have
[ 26 Pa. Commw. Page 393]
been suffered before the matter proceeds to a board of viewers. See Commonwealth v. Palmer, supra; cf. Jacobs v. Nether Providence Township, 6 Pa. Commonwealth Ct. 594, 297 A.2d 550 (1971). Here again, we find it impossible to determine from the lower court's opinion whether or not the required determinations have been made in this case.*fn5
While we would prefer to avoid further delay in this matter by ruling here on the question as to whether or not a "de facto" taking has occurred and as to whether or not PennDOT is liable to the Monacos for Section 612 damages, the record before us does not enable us to review the trial court's legal determinations, and, therefore, we must remand. Wallingford-Swarthmore School District and Borough of Swarthmore Tax Appeals, 7 Pa. Commonwealth Ct. 60, 298 A.2d 278 (1972).
And Now, this 13th day of September, 1976, the order of the Court of Common Pleas of Lawrence County is reversed and the case is remanded for further proceedings consistent with this opinion.
Reversed and remanded.