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PETITION JAMES E. RAMSEY AND KATHRYN H. RAMSEY (07/20/77)

decided: July 20, 1977.

IN RE: THE PETITION OF JAMES E. RAMSEY AND KATHRYN H. RAMSEY, HIS WIFE, TENANTS BY THE ENTIRETIES, FOR THE APPOINTMENT OF VIEWERS TO ASCERTAIN DAMAGES TO THEIR LAND IN UNITY TOWNSHIP, WESTMORELAND COUNTY, PENNSYLVANIA, BY REASON OF THE USE OF AND LOCATION OF THE GLIDE PATH AND LANDING APPROACH OF THE WESTMORELAND COUNTY AIRPORT AUTHORITY RUNWAY. JAMES E. RAMSEY AND KATHRYN H. RAMSEY, HIS WIFE, APPELLANTS


Appeal from the Order of the Court of Common Pleas of Westmoreland County in case of James E. Ramsey and Kathryn H. Ramsey, his wife v. Westmoreland County Airport Authority, No. 1022 of 1974.

COUNSEL

William J. Ober, with him Scales and Shaw, for appellants.

Robert P. Lightcap, with him Charles C. Mason, Jr. and Lightcap, McDonald & Moore, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by President Judge Bowman.

Author: Bowman

[ 31 Pa. Commw. Page 184]

This "de facto" condemnation appeal is from an order of the Court of Common Pleas of Westmoreland County dismissing a petition for appointment of viewers filed by James and Kathryn Ramsey (appellants). Appellants have averred, inter alia, that they are fee simple owners of a lot located near the end of an airport runway operated by the Westmoreland County Airport Authority (appellee); that the runway established a glide path and landing approach passing directly over their property and through their airspace; that radio broadcasting systems used in conjunction with said runway interfere with their radio and television reception; that no declaration of taking has been filed by appellee; and that by reason of said averments their fee simple interest has been taken or damaged.

Preliminary objections in the nature of a demurrer were overruled by the court below. On a prior appeal to this Court, we remanded, holding that a cause of action in de facto condemnation had been pleaded with regard to overflights, allowing appellants to amend their petition with regard to interference with their radio and television reception, and directing that an evidentiary hearing be conducted "so that a judicial determination might be made of whether the property

[ 31 Pa. Commw. Page 185]

    owners, based upon the evidence, established a de facto or inverse condemnation of their property as a matter of law." Petition of Ramsey, 20 Pa. Commonwealth Ct. 207, 212, 342 A.2d 124, 127 (1975).

Following the filing of an amended petition and amended preliminary objections thereto and an evidentiary hearing, the court below made extensive findings of fact and concluded that no cause of action had been stated whereupon the preliminary objections to the amended petition were sustained and the petition was dismissed. This second appeal followed.

A motion to quash this appeal as being one from an interlocutory order must be disposed of before we address ourselves to the merits.

Appellee bases its motion upon a local rule of court which purports to require all exceptions to findings of fact and conclusions of law -- which have been filed with the court below by appellants -- to be reviewed by the court below en banc. Appellee also cites several cases requiring compete exhaustion of remedies afforded by local rules before an appeal will lie.*fn1 The motion is without merit.

Section 303 of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. ยง 1-303, establishes the Code as the exclusive procedure to be followed in all condemnation cases with exceptions not here applicable.*fn2 This is no less true of de facto condemnations. ...


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