Appeals from the Order of the Court of Common Pleas of Allegheny County in case of Sanford B. Gold, Manuel Gold and Marvin H. Levick v. City of Pittsburgh, a municipal corporation, No. 2104 July Term, 1971.
D. R. Pellegrini, Assistant City Solicitor, with him Mead J. Mulvihill, Jr., City Solicitor, for City of Pittsburgh.
Leonard M. Mendelson, with him William R. Grove, Jr., and Hollinshead & Mendelson, for Sanford B. Gold, et al.
Judges Mencer, Rogers and DiSalle, sitting as a panel of three. Opinion by Judge Mencer.
[ 37 Pa. Commw. Page 439]
We have for determination cross appeals by the City of Pittsburgh (City) and Sanford B. Gold, Manuel Gold, and Marvin H. Levick (property owners) from an order of the Court of Common Pleas of Allegheny County which dismissed the exceptions filed by the City and the property owners to a non-jury verdict awarding $73,350 as just compensation for condemnation damages.
The City, on May 26, 1971, filed a declaration of taking for a strip of land 10 feet wide and 110 feet long for the installation of a sewer. This strip of land was the 10-foot walkway from Dawson Street to the rear alleyway located between two apartment buildings owned by the property owners. Preliminary objections
[ 37 Pa. Commw. Page 440]
to the declaration of taking were filed by the property owners, alleging that the taking was excessive in that it condemned in fee simple for sewer purposes and should only have condemned an easement. On December 14, 1972, the trial court sustained the preliminary objections, following which action the City amended its declaration of taking on January 29, 1973 to take an easement, rather than a fee simple, for the sewer installation.
However, during the pendency of these legal proceedings, the installation of the sewer had been completed in September of 1971, and thereafter but prior to the filing of the amended declaration of taking, the property owners made repairs and improvements to the two apartment buildings. In 1975, these buildings became subject to cracks in the foundations, doors sticking, and windows cracking.*fn1 Inspections were made by the City's Bureau of Building Inspection which thereafter sent the property owners a notice of various building code violations, with directions to submit an engineering report as to the stability of the buildings.
The property owners engaged a soil engineer and a structural engineer, who determined that the buildings were undermined by the "piping" action of water underneath the foundation slabs and recommended that the building at 3732 Dawson Street be demolished and suggested repairs be made to the building at 3728 Dawson Street. The building at 3732 Dawson Street was demolished because the property owners concluded
[ 37 Pa. Commw. Page 441]
that it would be financially unfeasible to rehabilitate this building and the failure to do so would subject them to prosecution for building code violations. Since the non-jury trial in the court below, the building at 3728 Dawson Street has been vacated due to structural instability.
The trial court, in awarding damages, ascertained damages as of May 26, 1971, the date of the original filing of the declaration of taking, without giving consideration to the remodeling and improvements to the buildings made by the property owners after that date but before the structural problems became apparent in 1975 and before the amended declaration was filed on January 29, 1973.
The City contends that we should reverse the trial court's order dismissing exceptions for the following reasons: (1) The property owners failed to file preliminary objections asserting that the City was taking more than it purported to take by its declaration of taking, (2) the damages to the property owners' buildings were cognizable in a trespass action rather than in eminent domain proceedings, (3) record evidence does not support the trial court's conclusion that damage to buildings was the direct, immediate, and unavoidable consequence of the City's eminent domain proceedings and its construction of the sewer, and (4) the property owners failed to mitigate their damages. The property owners appealed, contending that the trial court should have considered repairs and improvements made to the buildings between the date of the ...