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decided: December 8, 1980.


Appeal from the Order of the Court of Common Pleas of Delaware County in case of William J. Patuszek v. Commonwealth of Pennsylvania, Department of Transportation, No. 76-9144.


John T. Clary, Jr., Special Assistant Attorney General, with him William P. Culp, Special Assistant Attorney General, Ward T. Williams, Chief Counsel and Harvey Bartle, III, Acting Attorney General, for appellant.

Peter J. Nolan, for appellee.

President Judge Crumlish and Judges Blatt and Craig, sitting as a panel of three. Opinion by President Judge Crumlish.

Author: Crumlish

[ 55 Pa. Commw. Page 139]

A Delaware County Common Pleas Court dismissed the Pennsylvania Department of Transportation's (PennDOT) preliminary objections and found a de facto taking of the property of William J. Pastuszek.

In July of 1976, Pastuszek filed a Petition for the Appointment of a Jury of View pursuant to Section 502(e) of the Eminent Domain Code (Code).*fn1 PennDOT filed preliminary objections averring that there had been no taking. In April of 1979, the lower court, following an evidentiary hearing, concluded that there had indeed been a de facto taking, dismissed PennDOT's preliminary objections, and ordered the previously appointed Jury of View to proceed. PennDOT then appealed to us.

Pastuszek's property lies in the bed of a proposed ramp (Ramp C) leading from the Commodore Barry Bridge to Kerline Street in the City of Chester. The property is bounded on one side by land acquired by the state for the proposed ramp and on the other by a street and then another parcel of land acquired for the same ramp. Ramp C is only partially completed and stops approximately 185 feet short of traversing Pastuszek's property. The other approach roads and ramps were finished sometime after the completion of the bridge, while construction of Ramp C remains stalled for a lack of funding. Furthermore, PennDOT

[ 55 Pa. Commw. Page 140]

    admits encroaching upon the property by the placement of a fence, and destroying a certain access to the property by the taking and blocking of an alleyway. In addition, there is evidence in the record indicating that the entire property would be taken when funding was restored by the state.

We are asked to decide only whether the lower court properly concluded that Pastuszek's averments are legally sufficient to state a cause of action for compensable injury by reason of a de facto taking. "The focus of our inquiry is whether the appellees have demonstrated by substantial evidence that a formal condemnation of their land was inevitable and that the loss of rental income*fn2 and the unmarketability of the property was the proximate result of the Department's activities." Department of Transportation v. Lawton, 50 Pa. Commonwealth Ct. 144, 150, 412 A.2d 214, 216 (1980).

Section 502(e) of the Code allows landowners to file a petition for the appointment of viewers "[i]f there has been a compensable injury suffered and no declaration therefor has been filed." This Court has held such circumstances to be a "de facto taking." Greger v. Canton Township, 41 Pa. Commonwealth Ct. 20, 399 A.2d 138 (1979). "Our Supreme Court has held that a taking occurs when the entity clothed with the power of eminent domain substantially deprives an owner of the use and enjoyment of his property."

[ 55 Pa. Commw. Page 141]

Our scope of review is quite clear. The lower court's findings of fact will not be disturbed if they are based upon substantial evidence.*fn3

A careful review of the record thoroughly developed in the court below, when taken in the present factual and legal context, convinces us that substantial evidence exists to support a dismissal of the Department's preliminary objections and the findings of a de facto taking.



The Delaware County Common Pleas Court order, dated April 18, 1979, dismissing PennDOT's preliminary objections to a petition for appointment of viewers filed by William J. Pastuszek is hereby affirmed, and it is further ordered that the jury of view continue its appointed task of affixing a value to the property in question.



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