Appeal from the Order of the Court of Common Pleas of Montgomery County in case of A Condemnation Proceeding in Rem by Hatfield Township For the Purpose of Acquiring Fee Simple Title to Property Described Herein as Hatfield Township for Park and Recreational Purposes. The Property of: John S. Thomas and Johanne Thomas, his wife, Grace Building Company, Inc., and Bruce W. Keller, No. 74-13723.
Andrew Emalone, with him George Willner, and Pearlstine, Salkin, Hardiman and Robinson, for appellant.
Alfred O. Breinig, Jr., for appellees.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by Judge Blatt. Dissenting Opinion by Judge Mencer.
[ 28 Pa. Commw. Page 111]
On September 23, 1974, Hatfield Township filed a Declaration of Taking for three contiguous units of land situated in the Township, indicating that the land was being taken for the purpose of extending an existing park and recreational facilities. The condemnees filed preliminary objections to the taking, which were sustained by the Court of Common Pleas of Montgomery County, and the court then dismissed the Declaration of Taking and revested title to the property in the condemnees.*fn1 The issue below was whether or not the Township properly exercised its power of eminent domain, and the lower court found that an improper exercise of such power had occurred. The Township has appealed.
The location of the subject property is indicated on the map here reproduced, and it appears as units 1, 2 and 3 at the lower left-hand corner. The present park property is shaded, and the additional property which is now owned by the Township in this area is marked "T."
[ 28 Pa. Commw. Page 112]
As can be seen, the township park now extends to Second Street, a so-called "paper" street, and the lower court found that the Grace Building Co. owned units numbered 6, 8, 83, 9 and 11. It also found that the Township had "leaped-frogged" over these intervening units of properties in order to condemn the subject property and that the property taken was condemned
[ 28 Pa. Commw. Page 113]
while it was the subject of a zoning appeal pending in this Court.*fn2 Because the Township had previously condemned other property of the Grace Building Co. during the pendency of a zoning appeal (lot "A" on the above map), the court then held that:
It is manifestly clear that the intention of the township in this condemnation was to thwart the building plans of the condemnees.
That the subject property was condemned while it was still the subject of a zoning appeal pending in the Commonwealth Court of Pennsylvania also indicates ...