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COMMONWEALTH PENNSYLVANIA v. HARRISBURG COCA-COLA BOTTLING COMPANY (05/20/80)

decided: May 20, 1980.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT
v.
HARRISBURG COCA-COLA BOTTLING COMPANY, INC., APPELLEE



Appeal from the Order of the Court of Common Pleas of Cumberland County in case of Harrisburg Coca-Cola Bottling Company, Inc. v. Commonwealth of Pennsylvania, Department of Transportation, No. 1822 Civil, 1977.

COUNSEL

Charles L. Buechal, Jr., with him Mark S. Silver, Assistant Attorneys General, Robert W. Cunliffe, Deputy Attorney General, and Edward G. Biester, Jr., Attorney General, for appellant.

Clyde W. McIntyre, with him, Delano M. Lantz, McNees, Wallace and Nurick, for appellee.

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

Author: Williams

[ 51 Pa. Commw. Page 426]

This litigation commenced when the instant appellee, Harrisburg Coca-Cola Bottling Company, Inc. (Coca Cola), filed in the Court of Common Pleas of Cumberland County a petition for the appointment of viewers under Section 502(e) of the Eminent Domain

[ 51 Pa. Commw. Page 427]

Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-502(e). The appellant, Pennsylvania Department of Transportation (Department), appeals from the order of that lower court striking its supplemental preliminary objections to the petition.

The petition for viewers, filed on May 24, 1977, alleged that the Department had committed a de facto taking relative to an approximately 10 acre tract of land owned by Coca Cola. Coca Cola also claimed for consequential damage under Section 612 of the Code, which imposes liability for damage to property resulting from a change in the grade of an abutting road or highway. 26 P.S. § 1-612. The petition contended that the Department, in constructing a highway interchange ramp in 1970 through 1972, had changed the grade of a highway abutting Coca Cola's land as to obstruct the natural flow of water from the land. It was further alleged that due to the grade change Coca Cola's land became subject to recurrent flooding, which caused more than $500,000.00 in damage to the land during a hurricane in 1975.

On May 24, 1977 the lower court entered an order appointing viewers. However, the operation of that order was suspended when, on June 3, 1977, the Department filed preliminary objections to the petition for viewers. The preliminary objections consisted of a demurrer, a motion to strike and an alternative motion for a more specific pleading.

Argument was heard on the preliminary objections on August 24, 1977 before President Judge Shughart and Judge Rambo of the Court of Common Pleas of Cumberland County. On October 26, 1977 that court issued an opinion by Judge Rambo which decided that Coca Cola's petition sufficiently stated a cause of action for de facto taking but had not sufficiently alleged a case for consequential damages from the grade

[ 51 Pa. Commw. Page 428]

    change. Companion to that opinion, the lower court entered an order giving Coca Cola leave to amend its petition to state a cause of action for consequential damages under Section 612 to the Code. In that same order the court reserved ruling on the Department's demurrer and motion to strike, because the court deemed the record insufficient at that point to permit a decision. The court stated that there remained factual issues to resolve, and that it still had to determine whether the case warranted submission to viewers.

Appellee Coca Cola filed an amended petition on December 5, 1977, expanding its allegations as to consequential damages and adding other allegations going to the de facto claim. The amended petition was duly served on the Department. On December 29, 1977 the Department's counsel sent a letter to the appellee stating that the Department would file no supplemental preliminary objections to the amended petition. In that same letter, the Department took the position that the next procedural step was for the court to reinstate the viewers and to have the viewers commence their proceedings. Indeed, the Department itself represented that it would seek a viewers' proceeding later in the year and present evidence as to damages before the viewers.

Following that letter from the appellant the lower court, on January 24, 1978, entered an order reinstating the board of viewers and their mandate to proceed with their duties according to law. About one week after the viewers were reinstated the Department, by written letter to the board of viewers, requested that the site view be postponed until that spring. However, on May 5, 1978, the Department requested still another delay in the site view. Finally, on June 22, 1978 the Department ...


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