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

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. § 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 ...


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