No. 81-1-73, Appeal from the Order of the Commonwealth Court entered June 29, 1981, at No. 1699 C.D. 1979, affirming the Order of the Court of Common Pleas of Venango County, Civil Division, at A.D. No. 177-1978
John D. Rynd, Jr., Rynd & Olmes, Oil City, for appellant.
Benjamin G. McFate, Oil City, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Roberts, J., filed a concurring opinion in which Nix and Hutchinson, JJ., joined.
On May 17, 1978, appellee, Jane T. Woodring, filed a petition for the appointment of a board of viewers in the Venango County Court of Common Pleas,*fn1 alleging that the actions of appellant, the Redevelopment Authority of Oil City (hereinafter Authority),*fn2 constituted a de facto taking of her property, and that she was entitled to just compensation.*fn3
After an evidentiary hearing on the petition, the court of common pleas concluded that a de facto taking had occurred and directed the appointment of a board of viewers to ascertain just compensation for Mrs. Woodring. On appeal, the Commonwealth Court affirmed. Redevelopment Authority of Oil City v. Woodring, 60 Pa. Commw. 234, 430 A.2d 1243 (1981). We granted allocatur and we now affirm.
On May 21, 1974, the City Council of Oil City approved an urban redevelopment proposal submitted by the Authority. The proposal required, among other things, that "[e]xisting above ground utilities shall be incorporated into the underground system" along Elm Street in downtown Oil City. Mrs. Woodring owns several buildings, used for residential and commercial purposes, on Elm Street.
On August 9, 1976, construction of the new underground system began and the Authority invited Elm Street property owners to a meeting to discuss the relocation of their electrical service. Mrs. Woodring attended this meeting. A memorandum of the meeting, dated August 13, 1976 and sent to Elm Street property owners, indicates that the Authority planned to install underground service conduits ending at each owner's property line; that property owners were responsible for providing the encasement conduit for electrical service from their buildings to the property line; and that Pennsylvania Electric Company, pursuant to its tariff, was obligated to provide and reconnect all wiring for the relocation.*fn4 According to the memorandum, construction was to be completed within three to five months, and the changeover of service was to take place in early 1977.
Upon receipt of this memorandum, Mrs. Woodring employed an electrical contractor who installed new electrical connections in her buildings. Mrs. Woodring alleged in her petition that this work cost in excess of $5,000.
It is the contention of the Authority on this appeal that Mrs. Woodring is not entitled to compensation because (1) the Authority never exercised its power of eminent domain; (2) even if it did, Mrs. Woodring was never deprived of the use and enjoyment of her property; and (3) even if Mrs. Woodring was, that deprivation was not the immediate,
necessary and unavoidable consequence of any action on the Authority's part.*fn5
Compensation under the Eminent Domain Code does not require an actual taking. Rather, a taking occurs within the meaning of the Code, and compensation is due, whenever "the entity clothed with the power of eminent domain substantially deprives an owner of the use and enjoyment of his property." Griggs v. Allegheny County, 402 Pa. 411, 414, 168 A.2d 123, 124 (1961), rev'd on other grounds, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962). See also Conroy-Prugh Glass Company v. Commonwealth, Department of Transportation, 456 Pa. 384, 388, 321 A.2d 598, 599 (1974); Monaco v. Commonwealth, Department of Transportation, 26 Pa. Commw. 387, 363 A.2d 857, 859 (1976) ("[W]here an entity, clothed with the power of eminent domain, exercises that power and the immediate, necessary, and unavoidable consequence of that exercise is to destroy, injure ...