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COMMONWEALTH PENNSYLVANIA v. FRANK D. GARDONE AND AUDREY GARDONE (07/01/82)

decided: July 1, 1982.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT
v.
FRANK D. GARDONE AND AUDREY GARDONE, HIS WIFE, APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Frank D. Gardone and Audrey Gardone, his wife v. Commonwealth of Pennsylvania, Department of Transportation, No. G.D. 75-482.

COUNSEL

Jeffrey L. Giltenboth, Special Assistant Attorney General, with him Ward T. Williams, Chief Counsel, Harvey Bartle, III, Acting Attorney General, for appellant.

Joseph M. Ludwig, Ludwig & Achman, for appellee.

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

Author: Craig

[ 67 Pa. Commw. Page 274]

The Commonwealth of Pennsylvania, Department of Transportation (PennDOT), appeals the common pleas court's dismissal of its preliminary objections to a petition filed by Frank and Audrey Gardone (landowners) for the appointment of viewers under Section 612 of the Eminent Domain Code (Code),*fn1 to

[ 67 Pa. Commw. Page 275]

    assess damages for drainage injury resulting from a change of grade in the relocation of Campbell's Run Road, Allegheny County.

The landowner testified, as did a witness for PennDOT, that the landowners' predecessors in title -- the Staskos -- received compensation after the former Department of Highways filed the declaration of taking at the commencement of the project. The landowners, who then owned a bar next door to the subject property, purchased the land from the Staskos about fourteen months later.

PennDOT first claims that the landowner is barred from recovering consequential damages because of the previous payment to the Staskos. The record, however, contains no direct evidence concerning the details of the settlement with the Staskos as to the property here involved.*fn2 Therefore, we are precluded from any determination as to the scope of the Stasko payment and its effect upon the landowners' present claim for damages.

PennDOT also challenges the common pleas court's conclusion that the landowners were entitled to compensation because PennDOT's work varied from the declaration of taking.

The common pleas judge found that PennDOT "changed the plans as originally contemplated thereby altering the grade of ...


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