Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Peter Roberts Enterprises, Inc. v. Commonwealth of Pennsylvania Department of Transportation, No. 74-12506.
Martin Burman, Special Assistant Attorney General, with him Ronald M. Chesin, Special Assistant Attorney, Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellant.
Peter J. Nolan, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate in the decision. Opinion by Judge Crumlish, Jr. Dissenting Opinion by Judge Blatt. President Judge Bowman and Judge Wilkinson, Jr. join in this dissent.
[ 31 Pa. Commw. Page 481]
Presently before this Court is the appeal of the Department of Transportation (PennDOT) from an order of the court of common pleas which dismissed PennDOT's preliminary objections to a petition for appointment of viewers filed by Peter Roberts Enterprises, Inc. (Roberts). The court below had appointed a jury of view to ascertain just compensation for the taking of a tract owned by Roberts pursuant to Section 502(e) of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-502(e). The basis of the preliminary objections was that there had, in fact, been no condemnation of Roberts' property and no compensable injury warranting the appointment of a jury of view.
Factually, this matter is uncomplicated. In 1968 Roberts purchased a 31-acre tract of unimproved land in Kulpsville, Towamencin Township, Montgomery County. Roberts is in the real estate development business, and had intended to develop the entire property by the erection of apartments or single family dwellings.
In 1967 PennDOT began preliminary design on a proposed limited access highway, four miles in length, designated Legislative Route 782, and commonly known as the North Penn Expressway. The plans indicate that from approximately 1969 to the present, there have been no changes in the location of this highway as it affects the Roberts tract. Although PennDOT claims that its plans are still not final, it does admit that by 1970, the location of the center line of the highway had been determined and fixed. This center line divided Roberts' 31-acre tract into two pieces. The 15-acre piece to the north of the expressway is the portion with which we must concern ourselves in this litigation. The expressway delineates the southern border
[ 31 Pa. Commw. Page 482]
of this lot, and since there are no other roads that create access to the other three borders, the property is rendered completely landlocked by this project.
When Roberts first attempted to obtain building permits to develop the land in 1968, it was advised by township officials and officials of the Montgomery County Planning Commission that the entire parcel (31 acres) could not be developed because it would be divided by the expressway. It was also unable to obtain a building permit for the northern portion of the property because of its access problem. Roberts claims that the uncertainty and expense attendant to imminent taking forced it to sell the southern portion in 1971 in an effort to mitigate its damages.
Since 1971 Roberts has continually advised PennDOT of its inability to use or dispose of its property. Roberts currently receives no income from the property. A mortgage and a loan are outstanding against the land, and the mortgagee has made a demand for repayment in full.
More recently, PennDOT has recommended that the property be acquired, but to date, no offer has been made to Roberts; thus, the question of a possible taking is still before us.
The record is clear that many parcels near the Roberts property have been acquired over the last eight years, both amicably and by the filing of declarations of taking. A number of other properties have been acquired, or are in the process of being acquired, as "hardship" cases by virture of the filing of petitions such as the instant one.
Other relevant facts of record which the court below recognized in its decision in this case are that, first, although there is controverted evidence as to the center line of the highway being a fixed one at ...