Appeal from the Order of the Court of Common Pleas of Venango County in case of Jane T. Woodring v. Redevelopment Authority of the City of Oil City, No. A.D. 177, 1978, In Rem.
John D. Rynd, Jr., Rynd and Olmes, for appellant.
Benjamin G. McFate, McFate, McFate, McFate, Williams & McFate, for appellee.
President Judge Crumlish and Judges Mencer, Blatt, Craig and MacPhail. Judges Rogers, Williams, Jr. and Palladino did not participate. Opinion by Judge Blatt. Dissenting Opinion by Judge Craig. Judge MacPhail joins in this dissent.
[ 60 Pa. Commw. Page 236]
The appellant, the Redevelopment Authority of the City of Oil City (Authority) seeks review of a decision of the Court of Common Pleas of Venango County which found that certain actions by the Authority constituted a de facto taking of the property of the appellee, Jane T. Woodring. A board of view was appointed to determine the amount of compensation to which she was entitled.
In April of 1974, the Authority approved and adopted a redevelopment plan for the central business district of the City of Oil City, which provided, inter alia, that all above-ground utility lines in the area were to be placed underground. The Authority and the Pennsylvania Electric Company, the utility which supplies electricity to the citizens and businesses in Oil City, entered into a contract by which the utility agreed to remove existing overhead equipment and to install underground service at its own cost. The Authority also agreed to request the cooperation of the utility's customers in meeting the costs of the changeover as required by the utility's tariff.*fn1 The said tariff provides that customers shall assume the expense of changing the location of the delivery point for electricity on their premises if such a change is necessary when a utility is required to place its lines underground.
[ 60 Pa. Commw. Page 237]
In applying for the appointment of viewers, the appellee alleged that the action of the Authority caused her to expend substantial sums in order to ensure the continuation of electrical service to her premises and that such action amounted to a de facto taking by the Authority. The court below agreed and appointed a board of view to determine the amount of compensation due.*fn2 This appeal followed.
A de facto condemnation of property takes place when an entity exercises the power of eminent domain and the immediate, necessary and unavoidable consequence of the exercise of that power is to destroy, injure or damage private property so as to substantially deprive the owner of the beneficial use or enjoyment of that property, Harborcreek Township v. Ring, 48 Pa. Commonwealth Ct. 542, 410 A.2d 917 (1980), and our scope of review in such a case is limited to determining whether or not competent evidence supports the findings of fact made by the court below and whether or not there was an error of law or an abuse of discretion. City of Philadelphia v. Sterling Metalware Co., 48 Pa. Commonwealth Ct. 313, 410 A.2d 90 (1980).
The Authority first maintains that the appellee suffered no compensable injury or interference with the beneficial use of her property because she was never deprived of electrical service and there was no evidence presented that she lost tenants or income or that the marketability of her property was adversely affected.
It is clear, however, that the expenditure of substantial sums by the appellee ...