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CONDEMNATION 1315 TO 1391 WASHINGTON BOULEVARD v. COMMONWEALTH PENNSYLVANIA (03/27/78)

decided: March 27, 1978.

IN RE: CONDEMNATION OF 1315 TO 1391 WASHINGTON BOULEVARD, CITY OF PITTSBURGH, ALLEGHENY COUNTY, PA. COMMERCE LAND CORPORATION, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of In Re: Condemnation of 1315 to 1391 Washington Boulevard, City of Pittsburgh, Allegheny County, Pennsylvania -- Commerce Land Corporation v. Commonwealth of Pennsylvania, Department of Transportation, No. GD 75-9368.

COUNSEL

Brian C. Schreiber, with him Marvin Schreiber, and Schreiber & Schreiber, for appellant.

Benjamin B. Wechsler, II, 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., Wilkinson, Jr., Rogers and Blatt. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 34 Pa. Commw. Page 357]

Appellant, Commerce Land Corporation, was originally before us during our Spring 1976 Session to appeal a decision of the Court of Common Pleas which sustained the preliminary objections of the Department of Transportation's (PennDOT/Appellee) petition for appointment of viewers pursuant to Section 612 of the Eminent Domain Code (Code).*fn1 At that time, we ordered a remand and instructed the court

[ 34 Pa. Commw. Page 358]

    below to conduct a hearing and receive evidence regarding the extent of the circuitous travel necessitated by PennDOT's construction of a medial barrier limiting access to Appellant's property. See Commerce Land Corp. v. Department of Transportation, 25 Pa. Commonwealth Ct. 561, 361 A.2d 469 (1976). On remand, the court below, relying on Department of Transportation v. Nod's Incorporated, 14 Pa. Commonwealth Ct. 192, 321 A.2d 373 (1974), reiterated its earlier decision and held that the necessity to travel a circuitous route (at least up to four miles) will not give rise to a claim under Section 612 of the Code, 26 P.S. ยง 1-612. We affirm.

The record produced on remand reveals that Appellant is the owner of a truck terminal located in the Pittsburgh Metropolitan Area; that the construction of a medial strip along the center line of the road providing access to the terminal restricted ingress and egress to vehicles traveling in a southerly direction; that PennDOT acquired no additional land to effectuate the medial barrier construction; and that two alternative routes are available to obtain northbound access, each involving circuitous travel amounting to 2.35 and 2.80 miles, respectively.

Appellant contends that the restricted access occasioned by PennDOT's construction has rendered its property totally useless as a truck terminal and argues that the court below erred in failing to consider the particular characteristics of the terminal or that it had not determined whether there has been an unreasonable denial of access.*fn2

[ 34 Pa. Commw. Page 359]

PennDOT answers that the damage suffered by Appellant is damnum absque injuria and therefore not compensable.

In pursuing its argument, Appellant relies on Finkelstein v. Department of Transportation, 23 Pa. Commonwealth Ct. 628, 354 A.2d 14 (1976), wherein we held that PennDOT's construction of curbing along the perimeter of a commercial property, precluding all ...


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