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COMMONWEALTH PENNSYLVANIA v. CARL L. SCHODDE ET AL. (08/05/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 5, 1981.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT
v.
CARL L. SCHODDE ET AL., APPELLEES

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 1021, Section 3TR/W, a limited access highway, in the City of Pittsburgh, No. 13975 G.D. Term, 1976.

COUNSEL

Michael J. Creighton, Special Assistant Attorney General, with him Ward T. Williams, Chief Counsel -- Transportation, and Harvey Bartle, III, Acting Attorney General, for appellant.

William P. Bresnahan, O'Donnell, Bresnahan, Caputo and Capristo, for appellees.

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

Author: Blatt

[ 61 Pa. Commw. Page 78]

The Pennsylvania Department of Transportation (DOT) appeals an order of the Court of Common Pleas of Allegheny County which sustained the appellees' preliminary objections to declarations of taking filed by DOT.

On June 25, 1976, in order to provide for the construction of a limited access highway, DOT filed declarations of taking to condemn two properties owned by the appellees. On July 20, 1976, the appellees filed preliminary objections alleging that the proper owner of the property was not listed and, on July 26, 1976, after retaining new counsel, the appellees filed amended preliminary objections alleging that a de facto taking of the two properties here concerned had occurred in 1972 and 1973. Subsequently, a hearing was held and the court below sustained the amended preliminary objections, found that there had been a de facto taking of the properties and voided DOT's declarations of taking. This appeal followed.*fn1

DOT contends that under Section 406(c) of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. ยง 1-406(c),*fn2 all preliminary

[ 61 Pa. Commw. Page 79]

    objections must be raised at one time or be waived and that the appellees' amended preliminary objections must therefore be overruled because they were not simultaneously raised with the initial preliminary objections.

Section 406 of the Eminent Domain Code is a legislative pronouncement providing that the filing of preliminary objections is the exclusive procedure for challenging a declaration of taking and that such preliminary objections are the appropriate means for resolving legal and factual issues involving a de facto taking.

[ 61 Pa. Commw. Page 80]

    with the ability of the appellees to rent their property or deprive them of the use and enjoyment of it.

A de facto taking occurs when an entity clothed with the power of eminent domain substantially deprives an owner of the use and enjoyment of his property, Petition of Cornell Industrial Electric, Inc., 19 Pa. Commonwealth Ct. 599, 338 A.2d 752 (1975), and our scope of review is limited to determining whether or not the decision of the court below constituted an error of law and whether or not the findings of fact were supported by competent evidence. Miller v. Redevelopment Authority of the City of Bethlehem, 55 Pa. Commonwealth Ct. 612, 423 A.2d 1354 (1980).

The appellees allege that a de facto taking occurred based upon the following facts: (1) DOT told one of the tenants of the property that he should move out because the property was to be condemned; (2) between 1971 and 1977, DOT paid moving expenses and relocation benefits to that tenant and to a number of other lessees after they moved from the premises; (3) the appellees lost rental income due to DOT's actions; (4) the remaining rental income was insufficient to cover the taxes on the property; and (5) the premises deteriorated due to the conduct of replacement tenants.

Our review of the record reveals that conflicting testimony was presented as to factual allegations of the appellees. Unfortunately, the order of the lower court states only that a de facto taking occurred "by reason inter alia of the action of the Commonwealth in paying relocation and moving expenses to the tenants of the condemnes [ sic ] upon their quitting the subject premises. . . ." We would agree that DOT's payment of such expenses would be relevant to determining whether or not a de facto taking took place, but we do not believe that a finding as to such action is sufficient in and of itself to establish that the property was

[ 61 Pa. Commw. Page 82]

    so damaged, injured or destroyed as to substantially deprive the owners of the beneficial use thereof. See Conroy-Prugh Glass Co. v. Commonwealth, 456 Pa. 384, 321 A.2d 598 (1974); Reingold v. Urban Redevelopment Authority of Pittsburgh, 20 Pa. Commonwealth Ct. 266, 341 A.2d 915 (1975); Petition of Cornell Industrial Electric, Inc., supra. Inasmuch as the lower court has failed to make sufficient findings of fact to allow proper judicial review, we must reverse the determination made below and we will remand the case in order that the lower court may make additional findings of fact and render a decision in conformity with this opinion. Monaco v. Department of Transportation, 26 Pa. Commonwealth Ct. 387, 363 A.2d 857 (1976).

Order

And Now, this 5th day of August, 1981, the order of the Court of Common Pleas of Allegheny County in the above-captioned matter is hereby reversed and the record is remanded for disposition in accordance with the foregoing opinion.

Disposition

Reversed and remanded.


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