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decided: July 14, 1981.


No. 376 January Term, 1979, Appeal from the Order of the Commonwealth Court at No. 1977 C.D. 1977, reversing the Order of the Court of Common Pleas of Delaware County at No. 9309 of 1974.


Peter J. Nolan, Media, for appellant.

Edward D. Werblun, Asst. Atty. Gen., for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Nix, J., files a concurring opinion. Roberts, J., files a dissenting opinion.

Author: O'brien

[ 495 Pa. Page 384]


This appeal is from an order of the Commonwealth Court, reversing an order of the Court of Common Pleas, Delaware County, which had confirmed a report filed by the Board of Viewers.

The instant controversy involves the condemnation of approximately four and one-half acres of Crozer Park, a municipal park owned by appellant, the City of Chester. The land had been condemned by appellee, the Commonwealth of Pennsylvania, Department of Transportation, for the construction of access ramps to an existing interstate highway, I-95. To adequately understand the problems involved, however, we must give a factual narrative dating back to 1959.

In that year, PennDot condemned a portion of Crozer Park for the original construction of I-95. At the time of the original condemnation, Crozer Park was dissected by

[ 495 Pa. Page 385]

    railroad tracks of the Baltimore & Ohio Railroad which ran through the park in an east-west manner. The railroad tracks ran through the park on a grade substantially lower than the rest of the park. In the late 1800's, the B & O had built a timber bridge which connected a small southern portion of the park to the much larger northern section of Crozer Park by way of Finland Drive, the main road through the entire park. The construction of I-95 was accomplished by a deep excavation of the condemned land; I-95 runs through the park parallel to the railroad tracks directly south of said tracks. At the time of the original construction of I-95, the city was paid appropriate damages; in connection therewith, PennDOT had constructed a bridge over I-95 which was also a portion of Finland Drive. One proceeding north on Finland Drive from the southern entrance of the park would thus first cross the I-95 bridge and would immediately thereafter cross the B & O timber bridge to reach the northern section of Crozer Park.

Crozer Park contains, inter alia, a swimming pool, baseball diamonds, football fields, running tracks, picnic areas, and large wooded areas. Near the southern entrance to the park, at Finland Drive and Concord Road, are located the athletic facilities of Chester High School. The area surrounding the southern entrance of the park is predominantly residential. The main access for these families to the larger northern area of Crozer Park was by way of Finland Drive.

In 1972, the city engineer, Charles Catania, closed the B & O bridge because fires to the structure had, in Catania's opinion, made the bridge unsafe for either vehicular or pedestrian traffic. The city was unsuccessful in attempts to get the B & O to repair the structure. Thus, at the time of the 1974 condemnation involved instantly, the two sections of Crozer Park could not be reached by Finland Drive.

When the instant declaration of taking was filed in 1974, PennDOT's plans did not indicate that the bridge over I-95 was to be condemned. Nevertheless, in 1976, PennDOT demolished the I-95 span.

[ 495 Pa. Page 386]

During 1977, litigation ensued before the state Public Utility Commission. The B & O was seeking approval to remove its timber bridge which had been closed since 1972. Following a hearing before an administrative law judge and review before the PUC, the railroad was given permission to demolish the bridge. As the Commission stated in its order of January 9, 1978:

"Since removal of the other bridge over Interstate Highway 95, the subject bridge does not provide access to Crozer Park from Chester. Furthermore, PennDot has testified that it has no plans to rebuild the connecting bridge and the record shows that there are alternative access routes to the park which are reasonably available."

PennDOT maintains that the city has never appealed from the decision of the PUC.

A hearing on the 1974 condemnation was held, in April of 1978, before the Board of Viewers. Various witnesses called by the city testified about the unity of use relating to all of Crozer Park. Since the city was seeking the replacement cost of the bridge as an element of its damages, it introduced into evidence a September, 1975, cost estimate which forecast the cost of replacing the bridge at $874,361. PennDOT's real estate expert, Richard DeGrouchy, estimated the fair market value of the four plus acres of land condemned at $41,100. Following the hearing, the Board of Viewers made the following findings of fact and conclusions of law:

"1. The evidence produced at the hearing indicated that there was a unity of use between the Finland Drive-Concord Avenue section of Crozer Park and the larger section of the Park.

"2. From the evidence presented, it is determined that the bridge over I-95 was not closed on the date of the condemnation, August 16, 1974, and the testimony also indicated that the public used the bridge until it was demolished by the Condemnor.

"3. The Condemnor's plans, on which its taking is based, do not show the demolition or elimination of the bridge over I-95, and therefore the cost of the replacement of the

[ 495 Pa. Page 387]

    bridge was an element of the damages considered by the Jury of View."

Based on the above, the Viewers awarded the city damages of $939,000, said figure including the replacement cost of the I-95 bridge.

PennDOT appealed from the Viewer's report to the Court of Common Pleas, Delaware County, pursuant to § 517 of the Eminent Domain Code which provides:

"All objections, other than the amount of the award, raised by the appeal shall be determined by the Court preliminarily. The Court may confirm, modify, change the report or refer it back to the same or other Viewers. A decree confirming, modifying or changing the report shall constitute a final order." Act of June 22, 1964, P. L. 84, Art. V, § 517, 26 P. S. § 1-517 (Supp. 1980-81).

The Court confirmed findings # 1 and # 2, and further stated:

"[A]lthough in its third finding of fact and conclusion of law, the Jury of View finds that the plans do not show the demolition or elimination of the bridge, the finding apparently does not go far enough. The plans as submitted do not show that the bridge or the street connecting it have been condemned. It would therefore appear that as to the bridge and Finland Drive, the Commonwealth may very well be a trespasser." (footnote omitted).

PennDOT then appealed to the Commonwealth Court which reversed, holding that replacement cost for the bridge need not be included as an element of damages, because the city, by closing the B & O bridge, had destroyed any unity of use between the northern and southern sections of the park. Commonwealth v. City of Chester, 41 Pa. Commw. 422, 399 A.2d 1138 (1979). We granted the city's petition for allowance of appeal and this appeal followed.

Before reaching the merits of the instant appeal, we must first dispose of one procedural matter raised by the city. At the hearing before the Board of Viewers, the city argued inter alia, that § 605 of the Eminent Domain Code permitted the replacement cost of the I-95 bridge to be considered as

[ 495 Pa. Page 388]

    an element of damages resulting from the instant taking. That section provides:

"Where all or part of several contiguous tracts owned by one owner is condemned or a part of several non-contiguous tracts owned by one owner which are used together for a unified purpose is condemned, damages shall be assessed as if such tracts were one parcel." Act of June 22, 1964, P. L. 84, Art. VI, § 605, 26 P. S. § 1-605 (Supp. 1980-81).

The city presented witnesses who testified that the park was used as a unit and that the I-95 bridge was the primary means of access to the northern section of the park for families living to the south of Crozer Park. This being the case, the city cited § 705 of the Eminent Domain Code, which provides:

"A qualified valuation expert may testify . . . in detail as to the valuation of the property on a comparable market value, reproduction cost, or capitalization basis, which testimony may include but shall not be limited to the following:

"(v) the cost of adjustments and alterations to any remaining property made necessary or reasonably required by the Condemnation." 26 P. S. § 1-705

(Supp. 1980-81).

The Board of Viewers agreed with the argument advanced by the city and, pursuant to the aforementioned findings of fact and conclusions of law, held that replacement cost of the bridge was an element of the damages. The Court of Common Pleas affirmed the report of the Viewers. The Commonwealth Court, however, reversed, finding that the evidence presented to the Viewers did not sustain a finding of unity of use of the entire park. The city thus argues that the Commonwealth Court's decision has denied the city its right to a trial de novo by usurping the fact finding function of the trial court. Although we disagree with the Commonwealth Court's resolution of the question, we believe that tribunal did not exceed its authority in making the decision.

[ 495 Pa. Page 389]

As previously mentioned, § 517 of the Eminent Domain ...

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