Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Charles Susterick and Mary Susterick, his wife, v. Commonwealth of Pennsylvania, Department of Transportation, No. 2258 January 1975.
Michael Hahalyak, for appellants.
Jeffrey L. Giltenboth, Special Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer.
[ 30 Pa. Commw. Page 532]
Over the years, Charles and Mary Susterick have discovered the following items on their property: a 6-foot long piece of plywood, a motorcycle helmet, chunks of concrete, and an automobile headlight. What is unusual about this is the source of these items -- they have fallen on the property from the Saline Street Bridge on the Parkway East in Allegheny County. In the present action, the Sustericks have alleged that the falling of such debris, as well as large amounts of water and snow, has amounted to a taking without compensation by the Commonwealth. Unfortunately for the Sustericks, a release signed by their predecessor in interest in 1953, when a portion of the property was condemned by the Pennsylvania Department of Highways (now Department of Transportation) (Commonwealth) bars their present action.
On August 21, 1953, in exchange for $2,500, a prior owner of the property signed a release which states, in pertinent part:
[W]e . . . do hereby remise, release, quitclaim, and forever discharge the Commonwealth or any agency or political subdivision thereof, their employes or representatives, of and from all suits, damages, claims, and demands whatsoever, in law or equity or otherwise, against it or them or any of them, for or on account of any taking, injury, or destruction of property, through or by reason of the improvement of the said road . . . .
In an appraisal report dated June 25, 1953, in which an engineer for the Commonwealth estimated the damage from the condemnation at $2,500, the following observation was made on the nature of the damage:
An overhead bridge carrying the Penn Lincoln Highway traffic is now within 33 feet of the
[ 30 Pa. Commw. Page 533]
front wall of the dwelling, which at its base is approximately 82 feet below the floor of the overhead bridge. Fast moving traffic on the bridge sprays rain water, ice and slush over a low guard, and showers the residence with dirty refuse. This nuisance becomes an all weather hazard when the careless motorist, not realizing the danger, disposes of bottles and debris over the rail from his speeding auto. In addition to this, two drain pipes from the bridge floor discharge water underneath the bridge structure at points, where the constant currents of air cause this waste water to be blown against the subject dwelling. (Emphasis added.)
In the petition for appointment of viewers, the Sustericks alleged that they had been subjected to physical assault by the material falling from the bridge, that this interfered with access to their property, and that they had in other ways been deprived of full use and enjoyment of their property. Preliminary objections were filed by the Commonwealth and an evidentiary hearing was held. On January 14, 1976, the Court of Common Pleas of Allegheny County granted the Commonwealth's motion for dismissal. In response to the Sustericks' motion for a new trial or, in the alternative, a further evidentiary hearing, the lower court, by order dated February 11, 1976, set April 26, 1976, as the date of the hearing on the motion. At the hearing on April 26, the lower court accepted additional evidence on the alleged taking despite the Commonwealth's objection. By order dated the same day, the lower court affirmed ...