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CONDEMNATION BY TOWNSHIP HEIDELBERG FOR FOOTPATH (04/15/81)

decided: April 15, 1981.

IN RE: CONDEMNATION BY THE TOWNSHIP OF HEIDELBERG FOR FOOTPATH, ALLEYWAY AND BRIDGE PURPOSES, ETC. DONALD K. SPEICHER AND MARTHA M. SPEICHER, HIS WIFE, APPELLANTS. HARRY Z. FRY AND HILDA M. FRY, HIS WIFE, APPELLANTS


Appeals from the Order of the Court of Common Pleas of Berks County in case of In Re: Condemnation by the Township of Heidelberg for Footpath, Alleyway and Bridge Purposes, two separate tracts or parcels of land located in Heidelberg Township, Berks County, Pennsylvania, No. 149A March Term, 1978.

COUNSEL

Raymond C. Schlegel, Balmer, Mogel, Speidel & Roland, for appellants, Donald K. Speicher and Martha M. Speicher, his wife.

Scott D. Keller, with him John A. Hoffert, Jr., Matten & Cottom, for appellants, Harry Z. Fry and Hilda M. Fry, his wife.

Scott L. Huyett, for appellee, Township of Heidelberg.

Judges Blatt, MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge MacPhail. Judge Wilkinson, Jr. did not participate in the decision in this case. Judge Williams, Jr. concurs in the result only.

Author: Macphail

[ 58 Pa. Commw. Page 323]

This is an appeal from an order of the Court of Common Pleas of Berks County dismissing the preliminary objections of Harry Z. Fry, Hilda M. Fry, his wife, Donald K. Speicher and Martha M. Speicher, his wife, (collectively, Condemnees) to the declaration of taking filed by the condemnor Township of Heidelberg.

In February, 1978, the Township of Heidelberg (Township), a second class township, filed a declaration of taking to acquire land for the purpose of constructing thereon a footpath and/or alleyway and bridge, for use by school children walking from the Fry Manor residential development to the Conrad Weiser School Complex. At present, the children must travel along the berm of U.S. Route 422, a busy highway, to reach the school.*fn1 The proposed footpath and/or alleyway would route the children in another direction -- across property at the end of Lynn Street in the Fry Manor development, across a bridge over the Furnace Creek, and across land on the other side

[ 58 Pa. Commw. Page 324]

    leading up to the School District's property. The Township proposes to condemn a strip of land, approximately 132 feet by 54 feet, belonging to the Speichers who live on the Fry Manor side of the creek. It also proposes to acquire a strip, approximately 30 feet by 152 feet, owned by the Frys who live on the school side of the creek.

The condemnor Township's initial condemnation resolution referred to a taking of an easement or right of way over the Condemnees' property, whereas its declaration of taking referred to the taking of a fee simple interest. The Court allowed the Township to amend the language in its resolution to conform to that in its declaration of taking.

On appeal, the Condemnees argue that the lower court erred in dismissing their preliminary objections for the following reasons:

1) The condemnor Township had no express or implied power to condemn Condemnees' property to construct a footpath for school children and the public.

2) The Township improperly initiated the condemnation proceedings without making any cost or feasibility studies centering on the proposed location for the footpath and bridge.

3) The condemnation for a footpath having a width up to 54 feet is excessive.

4) The condemnation for a new footpath is arbitrary, capricious, and an abuse of discretion.

5) The initial condemnation resolution which referred to a taking of an easement or right of way is ineffective to condemn a fee simple interest.

In examining the lower court's decision and the record, we must remember that in eminent domain cases our scope of ...


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