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BOROUGH LATROBE v. LATROBE VETERANS HOME ASSOCIATION (06/12/80)

decided: June 12, 1980.

BOROUGH OF LATROBE, APPELLANT
v.
LATROBE VETERANS HOME ASSOCIATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Westmoreland County in case of Latrobe Veterans Home Association v. Borough of Latrobe, No. 2861 of 1976.

COUNSEL

Gene E. McDonald, with him Charles C. Mason, Jr., Lightcap, McDonald and Moore, for appellant.

Thomas J. Godlewski, with him Michael J. Stewart, Godlewski & Stewart, for appellee.

Judges Rogers, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 52 Pa. Commw. Page 188]

The Borough of Latrobe has appealed from an order of the Court of Common Pleas of Westmoreland County overruling its preliminary objections to the petition for the appointment of a board of view of the Latrobe Veterans Home Association.

The Home Association owns a building, apparently used as a club, on a 50 foot wide lot on the west side of Spring Street in Latrobe Borough. The lot extends 100 feet to the rear or west to a 20 feet wide public alley which prior to the events of this suit extended on a line parallel to Spring Street to Ligonier Street to the north and Jefferson Street to the south. In June 1974, the Borough enacted an ordinance vacating the alley from Ligonier Street south to the north boundary (extended) of the Home Association's lot. The alley presently extends only from Jefferson Street north to, and along, the Home Association's rear line, terminating

[ 52 Pa. Commw. Page 189]

    at a parking garage since erected just north of the north line (extended) of the Home Association's lot. The northwest corner of the Home Association's lot is also the southeast corner of the vacated portion of the alley so that to this extent the Home Association abuts the area of the vacation.

The Home Association alleges in its petition for the appointment of viewers that it is entitled to just compensation either because the vacation and closing of the alley effected a de facto taking of its property, or because two statutes (one repealed, the other not dealing with compensation) or Section 613 of the Eminent Domain Code, Act of June 22, 1964, Special Sess. P.L. 84, as amended, 26 P.S. ยง 1-613, so provide. The Borough's preliminary objections complain that the Home Association has not alleged circumstances which would entitle it to compensation at the hands of viewers. Based on the pleadings and a stipulation of facts, the court below concluded that the Home Association's petition sufficiently alleged a taking and overruled the preliminary objections.

The Borough's principal argument is that the Home Association is complaining of injuries which are not compensable, that is, that travel in one direction is made slightly longer or that traffic has been diverted from its doors. It cites the familiar cases of Wolfe v. Department of Highways, 422 Pa. 34, 220 A.2d 868 (1966); Hession Condemnation Case, 430 Pa. 273, 242 A.2d 432 (1968), and Department of Transportation v. Kastner, 13 Pa. Commonwealth Ct. 525, 320 A.2d 146 (1974).

The Home Association says, on the other hand, that it is not complaining of having to travel circuitously to go in one direction or of the diversion of traffic along the alley at the rear of its property but of interference with access to its property by reason of the ...


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