Appeal from the Order of the Court of Common Pleas of Erie County in case of Fred H. Ring and Nell K. Ring, his wife v. Harborcreek Township, No. 4007-A-1977.
Eugene J. Brew, Jr., with him Dale and Brew, for appellant.
Michael E. Dunlavey, for appellees.
Judges Wilkinson, Jr., Blatt and Craig, sitting as a panel of three. Opinion by Judge Wilkinson, Jr. This decision was reached prior to the expiration of the term of office of Judge DiSalle.
[ 48 Pa. Commw. Page 543]
Alleging a "de facto" taking, the appellees commenced this litigation with a Petition for the Appointment of a Board of Viewers filed 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 appellees are the owners of a property which is known as Shorewood Inn in Harborcreek Township (Township) and which extends to the shoreline
[ 48 Pa. Commw. Page 544]
of Lake Erie. In the summer of 1977 the Township extended the road to the lake and installed a boat ramp where the extension of the road met the lake shore. On each side of the boat ramp the Township erected a breakwall. The boat ramp and the breakwalls were formed by laying long concrete slabs adjacent to one another.
The Township filed preliminary objections positing the failure to state a cause of action and challenging the allegation of a taking. After a series of depositions and a court-conducted view of the property, the Court of Common Pleas of Erie County found that there had been a de facto taking of the appellee's property and dismissed the Township's preliminary objections to the Petition. This appeal followed.
When confronted with a petition for appointment of viewers alleging a de facto taking to which a preliminary objection in the nature of a demurrer is filed, the lower court must first decide whether as a matter of law the averments of the petition, taken as true, are sufficient to state a cause of action of a de facto taking. If not, the preliminary objections must be sustained and the petition dismissed or the petitioner allowed to amend his pleading. If the averments, taken as true, might establish a de facto taking, the lower court must take evidence by deposition or otherwise so that a judicial determination might be made. If the averments on their face establish a de facto taking, then the preliminary objections must be dismissed. Petition of Ramsey, 20 Pa. Commonwealth Ct. 207, 342 A.2d 124 (1975).
An order dismissing preliminary objections to a petition for the appointment of viewers alleging a defacto taking is a final and appealable order. Sunbeam Coal Corp. v. Pennsylvania Game Commission, 37 Pa. Commonwealth Ct. 469, 391 A.2d 29 (1978). The question now before this Court is whether there was substantial
[ 48 Pa. Commw. Page 545]
evidence to support the findings by the court of common pleas that ...