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. ...