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PETITION FRANCIS TRACY v. COMMONWEALTH PENNSYLVANIA (06/05/79)

decided: June 5, 1979.

IN RE: PETITION OF FRANCIS TRACY
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT



Appeal from the Order of the Court of Common Pleas of Fayette County in case of In Re: Petition of Francis Tracy v. Commonwealth of Pennsylvania, Department of Transportation, No. 616 March Term, 1977.

COUNSEL

Michael J. Creighton, Special Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, Chief Counsel, and Gerald Gornish, Acting Attorney General, for appellant.

Gregory T. Nichols, for appellee.

Judges Wilkinson, Jr., DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 43 Pa. Commw. Page 219]

This is an appeal by the Commonwealth of Pennsylvania, Department of Transportation from a dismissal of its Preliminary Objections to a Petition for Appointment of a Board of Viewers. Appellee is alleging a "de facto taking" under Section 612 of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. ยง 1-612. The court below found sufficient evidence was presented by appellee to establish a "de facto taking." We affirm.

Appellee has been the owner for approximately 22 years of a parcel of land in Fayette County situated at the southeast corner of the junction of Legislative Route 119 (119) and Legislative Route 26119 (26119). In April of 1976 appellant, which was widening 119 in order to set up a "standby" left turn lane, erected an eight inch curb around the edge of appellee's property

[ 43 Pa. Commw. Page 220]

    within the highway right-of-way. This curbing hems the circumference of the corner breaking into openings or access "throats" on both 26119 and 119. The width of the throat on 26119 is 100 feet and the one on 119 is 44 feet.*fn1 Before that appellee's property and the road were blended or graded together.

Appellee's land is about an acre upon which sits a 40 by 70 foot tavern-restaurant and a six unit motel situated 50 feet south of the tavern on the southern boundary of appellee's property.

Prior to the road widening a good percentage of appellee's patrons were truck drivers. They are not now. This is so, appellee says, because tractor trailer trucks cannot get out of his lot safely once they come in off 119 and cannot get in his lot at all off 26119. This, he says, is constructive taking under Section 612 of the Code.

Appellant, relying on a long line of cases, Hession Condemnation Case, 430 Pa. 273, 242 A.2d 432 (1968), cert. denied, 393 U.S. 1049 (1969); Wolf v. Department of Highways, 422 Pa. 34, 220 A.2d 868 (1966); Brill v. Department of Transportation, 22 Pa. Commonwealth Ct. 202, 348 A.2d 451 (1975); Department of Transportation v. Nod's Inc., 14 Pa. Commonwealth Ct. 192, 321 A.2d 373 (1974); Department of Transportation v. Kastner, 13 Pa. Commonwealth Ct. 525, 320 A.2d 146 (1974), cert. denied, 419 U.S. 1109 (1975), asserts that this is not a taking and damages, if any, are damnum absque injuria. The above cases are "barrier" and ...


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