No. 209 March Term, 1978, Appeal from the Order of the Commonwealth Court at No. 649 C.D. 1977, reversing the Order of the Court of Common Pleas of Allegheny County, Civil Division, at No. GD 75-9355. Before Mr. Justice NIX. Mr. Justice MANDERINO filed a Dissenting Opinion. Mr. Justice LARSEN did not participate in the consideration or disposition of this case.
Leonard M. Mendelson, Hollinshead & Mendelson, Pittsburgh, for appellant.
Gerald Gornish, Atty. Gen., Benjamin B. Wechsler, II, Sp. Asst. Atty. Gen., Robert W. Cunliffe, Deputy Atty. Gen., Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, and Manderino, JJ. Larsen, J., did not participate in the consideration or disposition of this case. Manderino, J., filed a dissenting opinion.
The facts presented in this appeal are undisputed. The appellant owns a parcel of land in Harmar and Indiana Townships, Allegheny County which is used as a truck terminal. The property does not abut on any public thoroughfare, except the Pennsylvania Turnpike, to which there is no access along appellant's frontage. The only access to this parcel is by means of a right-of-way over abutting lands to Legislative Route 679. The Commonwealth filed a declaration of taking by which it condemned a portion of appellant's right-of-way and raised the grade of Route 679. It is conceded that appellant is entitled to be compensated for the damages resulting from the changing of the grade of the road. The dispute arises because appellant does not assert as its principal damage the taking of a part of the right-of-way or the elevation of the road grade. To the contrary, appellant seeks compensation for the impediment to its access during the construction period. As a result of the construction, access to the portion of Route 679 south of appellant's right-of-way, required vehicles entering and leaving appellant's parcel to travel 14 miles farther in each direction to reach the main highway system. It is asserted that this temporary inconvenience imposed upon appellant caused additional out-of-pocket costs in the form of salaries, gas, oil and additional wear and tear on the vehicles involved.
Appellant contends that section 606 of the Eminent Domain Code*fn1 authorized as compensable damages in connection with the taking its out-of-pocket expenses resulting from the closure of Route 679 during the year-long course of construction activity.*fn2 The appellant urged the Court of Common Pleas of Allegheny County to construe section 606 of the Code, when read in conjunction with the pertinent part of section 602 of the Code,*fn3 to allow the Court of Common Pleas to take into account, in appraising the fair market value of the land after a partial taking, evidence concerning the diminution in its fair market value due to the temporary loss of direct access to Route 679. The Court of Common Pleas accepted appellant's interpretation of the statute, modified the Board of Viewers' report in the instant case, and ordered that, at trial, the impact upon appellant's property of the physical closing of Route 679 during the construction period should be an element to be considered, together with all other proper elements, in determining the
fair market value of appellant's property immediately after the condemnation. The Commonwealth Court reversed the order of the Court of Common Pleas insofar as it provided that the impact of the highway's closing during construction was to be considered a factor in determining appellant's damages.
The question presented for decision is, therefore, whether the language of the statute warrants compensation for temporary deprivation of right of access to a road necessitated by public construction, changing its grade where a partial taking has been effectuated. Under established Pennsylvania law, the accrual of damages for loss of access resulting from a change in the grade of a public street or road does not constitute a taking of property within the meaning of the Constitution absent an express statutory enactment providing for the payment of such damages. McGarrity v. Commonwealth, 311 Pa. 436, 439, 166 A. 895, 896 (1933). This common law rule,*fn4 to which Pennsylvania adheres, has been held compatible with the dictates of the Federal Constitution. Delaware River Commission v. Colburn, 310 U.S. 419, 60 S.Ct. 1039, 84 L.Ed. 1287 (1940). The Eminent Domain Code expressly authorizes the recovery of consequential damages, whether or not any property is taken, when there is a " permanent interference with access thereto." Eminent Domain Code, Section 612 (emphasis added).*fn5 In interpreting and applying the "before and after" measure of damages now codified in section 602 of the Code, Pennsylvania courts required a showing of a permanent injury or deprivation of property rights to establish entitlement to damages in an eminent domain proceeding. Perla v. Commonwealth, 392 Pa. 96, 139 A.2d 673 (1958);
Thus, even assuming arguendo that the words of the statute as supplemented by a comment whose soundness has been questioned*fn6 support appellant's interpretation, the question remains whether appellant has suffered special, particular and direct damages resulting from temporary loss of direct access to Route 679 as differentiated from the general damages which "accrue to the community as a whole" as a result of the construction. Pennsylvania RR Co. v. Marchant, 119 Pa. 541, 13 A. 690 (1888); Pennsylvania RR Co. v. Lippincott, 116 Pa. 472, 9 A. 871 (1887).
Since there was no cause of action at common law for the temporary deprivation of access caused by the work of making a public improvement, such temporary inconvenience not being deemed to constitute a "taking" of a property right, Iron City Auto Co. v. Pittsburgh, supra; Pennsylvania RR Co. v. Marchant, supra, appellant's contention boils down to the proposition that the legislature intended to create a compensable property right hitherto unknown to Pennsylvania law by the following language:
In determining the fair market value of the remaining property after a partial taking, consideration shall be given to the use to which the property condemned is to be put and the damages or benefits specially affecting the remaining property due to its proximity to the ...