have been a misstatement, and that both PECO and the PUC knew or should have known as much, and that Albert Goadby was entitled to try to prove that the scope of the right-of-way sought was greater than stated by PECO. Because he was not informed of the nature of the taking, he was not alerted to make such arguments, and the hearings on his claims were meaningless.
Under Pennsylvania law "when the entity clothed with the power of eminent domain substantially deprives an owner of the beneficial use and enjoyment of his property" there is a "de facto taking." Griggs v. Allegheny County, 402 Pa. 411, 414, 168 A.2d 123, 124 (1961) reversed on other grounds, 369 U.S. 84, 82 S. Ct. 531, 7 L. Ed. 2d 585 (1962). See Section 502(e) of the Eminent Domain Code, 26 P.S. § 1-502(e) (Supp.1974-75); Cf. Commonwealth, Department of Transportation v. Township of Palmer, 329 A.2d 871, 873 note 4 (1979). The Pennsylvania Supreme Court has held "whenever the lawful rights of an individual to the possession, use or enjoyment of his land are in any degree abridged or destroyed by reason of the exercise of the power of eminent domain, his property is pro tanto taken, and he is entitled to compensation." Miller v. Beaver Falls, 368 Pa. 189, 196-97, 82 A.2d 34 (1951). (Emphasis in original).
We have heard testimony that plaintiff's land may be taken to a larger extent than he was told. At the very least, he deserved a forum in which to state a claim regarding the scope of the taking or the amount of damage to his interests for which he would be entitled to just compensation. Because plaintiff was denied that opportunity, this Court concludes that he has a reasonable likelihood of success on the merits in his claim against defendants, both under Section 1983 and under the 14th Amendment.
This Court must also inquire into the nature of irreparable harm asserted by plaintiff, and the likelihood of significant harm to defendants should the injunction issue. The Court of Appeals has mandated that the district courts engage in a "delicate balancing" of all the elements required for a preliminary injunction, Constructors Association of Western Pennsylvania v. Kreps, 573 F.2d 811, 815 (3d Cir. 1978). While this Court performs that feat, it is mindful of the equities present here. Plaintiff is not a wealthy man-his land is his only valuable asset. Defendants propose to raze his trees on approximately 20% of his land, and to suspend overhead high voltage transmission lines. They will do so, having failed to reveal to plaintiff the possible nature of the injury he is to endure. Defendants, on the other hand, will lose nothing until October 15. At that point, their losses will indeed be substantial, but now they are warned well ahead of time, and may make arrangements to best mitigate their losses. Because of the terms of the relief this Court will grant, it finds that the claimed loss to defendants can be mitigated. Finally, the Court must consider the public. It is true that electricity rates may be affected to a miniscule degree, and, temporarily, there will be greater risk of power shortages. But this Court cannot conclude that the public is well served by a ruling that would contribute to the dimunition of its rights. This is not a contract action where the Court must decide the relative contractual rights and commercial strengths of individual litigants. We are considering here the fundamental rights of citizens to be secure from arbitrary government action. Surely the interests of the public are better served by the protection of its basic liberties than by a callous sacrifice of the rights of one for the marginal convenience of many.
Having made these findings, and these observations, the Court will hereby order that Philadelphia Electric Company is enjoined from entering upon the land of Albert Goadby until such time as he has been heard in the appropriate administrative hearing of the Public Utility Commission to state his claims regarding the encroachment of an electro-magnetic field upon his land by the proposed Elroy-Hosensack transmission line-or his claims have been heard in this Court.
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