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COMMONWEALTH PENNSYLVANIA v. J. EDWARD LAWTON (03/14/80)

decided: March 14, 1980.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT
v.
J. EDWARD LAWTON, III, AND JENNIFER R. LAWTON, HIS WIFE, APPELLEES



Appeal from the Order of the Court of Common Pleas of Delaware County in case of J. Edward Lawton, III, and Jennifer R. Lawton, his wife v. Commonwealth of Pennsylvania, Department of Transportation, No. 78-15328.

COUNSEL

Marie Inyang, Special Assistant Attorney General, with her John T. Clary, Jr., Special Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Edward G. Biester, Attorney General, for appellant.

Murray S. Eckell, with him Nicholas J. Emper, of Eckell, Sparks, Vadino, Auerbach and Monte, for appellees.

Judges Wilkinson, Jr., Mencer and Craig, sitting as a panel of three. Opinion by Judge Wilkinson, Jr. President Judge Bowman did not participate in the decision in this case.

Author: Wilkinson

[ 50 Pa. Commw. Page 145]

Alleging a "de facto" taking, the appellees commenced this litigation with a petition for the appointment of viewers filed pursuant to Section 502(e) of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. ยง 1-502(e). The Court of Common Pleas of Delaware County dismissed preliminary objections of the Commonwealth of Pennsylvania, Department of Transportation (Department) to the petition. The Department appeals to this Court.

[ 50 Pa. Commw. Page 146]

Appellees own approximately 30 acres in Springfield Township. Located on their property are appellees' residence, a school building (rented out for a winter school), a swimming pool and camp buildings (at which the appellees used to run a summer camp and at which a tenant ran a summer camp in 1975, 1976, and 1977). Since 1959 the Department has proposed construction of legislative route 1010 (Blue Route), which is to be a six lane limited access route connecting the Pennsylvania Turnpike in Montgomery County with Interstate 95 in Delaware County. Within Delaware County there are ten "sections" of Blue Route that are presently planned, numbered south to north as Blue Route, A1 to Blue Route, C2. Appellees' property would fall in proposed section A3. Of the ten sections, only one section has been constructed (section B4) in the northern end of Delaware County. There have been acquisitions and condemnations in other sections. In October 1963 an "ultimate" right of way plan which included part of appellees' land was filed in the Delaware County Recorder of Deeds Office. An actual right of way plan for section A3 has neither been recorded nor approved, and the Department has not filed a Declaration of Taking to condemn appellees' property.

Averring that as a result of the Department's actions and of the publicity of the imminence of the formal condemnation of their land by the Department the appellees have been unable to obtain the fair market value of the property through sale or the fair rental value of the property and have consequently not paid the real estate taxes on the property for the years 1977 and 1978 and are threatened with the eventual loss of the property, the appellees filed on October 16, 1978 a petition for the appointment of viewers. The Department filed preliminary objections to the petition on the grounds that the Department never deprived the appellees of the beneficial use and enjoyment

[ 50 Pa. Commw. Page 147]

    of the property and that the acts complained of are merely preliminary, incidental and foreseeable ones preparatory to a possible condemnation. After a hearing, the court of common pleas found that a de facto taking of appellees' land had occurred and dismissed the Department's preliminary objections.

The issues before us are (1) whether the lower court properly concluded that the averments of appellees' petition are legally sufficient to state a cause of action for compensable injury by reason of a de facto taking, and (2) whether the lower court erred in finding that the date of the de facto taking was October 16, ...


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