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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA (11/07/80)

decided: November 7, 1980.

IN RE: CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, OF RIGHT-OF-WAY FOR LEGISLATIVE ROUTE 02302 ETC. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT


Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, of Right-of-Way for Legislative Route 02302, Section 3T R/W, A Limited Access Highway in Ross Township v. N.H. Weidner, Inc. Owner of Property Identified on Commonwealth Plans as Parcel No. 37A and 37B, No. 1477 January Term, 1975, Sur No. 3041 April Term, 1974.

COUNSEL

Jeffrey L. Giltenboth, Special Assistant Attorney General, with him Ward T. Williams, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for appellant.

William P. Bresnahan, O'Donnell, Bresnahan, Caputo & Capristo, for appellees, Samuel J. Alioto & Anne K. Alioto, his wife.

Samuel P. Kamin, Kamin & Mandell, for appellee, Jack Berman, trading as Valet Boy Cleaners.

William H. Markus, with him Leonard M. Mendelson, Hollinshead & Mendelson, for appellee, Jerome Danenberg, trading as Berkeley Hills Pharmacy.

Judges Wilkinson, Jr., Craig and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams, Jr.

[ 54 Pa. Commw. Page 479]

The Pennsylvania Department of Transportation (Department) has appealed from an order of the Court of Common Pleas of Allegheny County quashing

[ 54 Pa. Commw. Page 480]

    part of the Department's appeal from a viewers' report in an eminent domain proceeding. The lower court concluded that the Department's appeal did not comply with the requirements of Section 516(a) of the Eminent Domain Code (Code)*fn1 insofar as two tenants and the co-owners of an easement were concerned; and the lower court entered final judgment in favor of each of those claimants on motion.

In March 1974, the Department filed a declaration of taking to condemn a portion of land owned in fee simple by N.H. Weidner, Inc.*fn2 The land is located in Ross Township, Allegheny County, and was condemned for highway purposes.

In November 1974, the fee owners petitioned for the appointment of a board of viewers, and designated as other interests in the property the leasehold of a Jack Berman, trading as "Valet Boy Cleaners", and the leasehold of a Jerome Danenberg, trading as "Berkeley Hills Pharmacy." In February 1976, the petition for viewers was amended to include Samuel J. and Anne K. Alioto, husband and wife, as owners of a right-of-way over the condemned land. Each of these parties claimed for damages to their distinct and separate interests in the condemned property.

In April 1978, prior to the end of proceedings before the board of viewers, the Department filed a written request for findings of fact and conclusions of law.*fn3 In that request the Department expressly acknowledged and designated the two tenants and the easement owners as being "additional condemnees."

[ 54 Pa. Commw. Page 481]

On September 29, 1978, the viewers filed their report, which in pertinent part declared that:

[T]he Viewers do now estimate and determine that the said N.H. Weidner, Inc., have (sic) sustained damages in the sum of SEVENTY-ONE THOUSAND FIVE HUNDRED and no/100ths -- ($71,500.00) DOLLARS. . . .

Distribution of the Award is as follows:

WEIDNER, INC. ...


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