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decided: August 30, 1982.


Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Greisler Brothers v. Commonwealth of Pennsylvania, Department of Transportation, No. 2009 February Term, 1968.


George Bristol, Assistant Counsel, with him Martin B. Burman and Scott M. Olin, Assistant Counsels, Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.

Christina J. Barbieri, with her Lewis Kates, Kates, Livesey & Mazzocone, P.C., for appellee.

President Judge Crumlish and Judges Rogers and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 68 Pa. Commw. Page 495]

This appeal by the Department of Transportation (DOT) from an order of the Court of Common Pleas of Philadelphia County which held that a "de facto" taking of the property of Greisler Brothers, Inc. (Appellee) occurred when DOT constructed an access ramp to Interstate Highway 95 (I-95) in the bed of Summer Street in the City of Philadelphia, raises complex issues, most of which could have been avoided by prompt and proper pleading in the trial court.

The protracted proceedings in this case were initiated on February 29, 1968 when Appellee petitioned the trial court for the appointment of a board of viewers to assess damages to its property, which is improved with a meat processing plant. The petition alleged a de facto taking*fn1 as a result of planned and effected condemnations of properties in the vicinity of Appellee's plant, as well as the fact that the planned access ramp, when constructed, would interfere with access to Appellee's delivery entrance at the rear of its plant.

The petition was granted by the trial court on May 3, 1968 and a board of viewers was appointed. Approximately two and one-half years later, Appellee petitioned the trial court to limit the issues before the board to that of damages based on the theory that DOT had waived its right to challenge the existence of a compensable injury to Appellee's property by its failure to file preliminary objections. The trial court originally ordered that the issues before the board be limited to damages but, after several procedural complexities which need not be detailed here, later vacated its order. An appeal was taken by Appellee from that order to this Court.

[ 68 Pa. Commw. Page 496]

In an unreported opinion and order filed November 20, 1973, per the late President Judge Bowman, this Court concluded that the case should be remanded to the trial court so that the court, rather than the board, could resolve the legal issue of whether or not a de facto taking had occurred. Greisler Brothers v. Department of Transportation, (No. 975 C.D. 1972, filed November 20, 1973) (Greisler I). Upon remand and following the taking of depositions over a period of several years, the trial court concluded that a compensable injury had occurred and granted Appellee's petition for the appointment of a board of viewers. The instant appeal is from this last order of the trial court, filed on June 9, 1981.

The first issue which we must resolve relates to our decision in Greisler I. The issue presented to us in that appeal was whether or not DOT had waived its right to contest the occurrence of a compensable injury to Appellee's property by its failure to file preliminary objections to the petition for the appointment of viewers. While we recognized in Greisler I that preliminary objections are the appropriate procedure to employ in contesting a de facto taking,*fn2 we also noted that the correctness of that procedure was not clearly established in the case law until after the time for filing preliminary objections in the instant case had expired. Therefore, although DOT had not filed preliminary objections we held that we could not "now declare retrospectively that PennDOT waived its right to object to Appellant's assertion that a de facto taking had occurred. Newly declared procedure to fill

[ 68 Pa. Commw. Page 497]

    gaps in statutorily prescribed procedures should not be applied to produce a waiver of a basic legal issue." Id., slip op. at 4. We, accordingly, remanded for further proceedings.

Appellee contends that our opinion in Greisler I required that, upon remand, DOT file preliminary objections nunc pro tunc. In support of its position, Appellee points to our statement in Greisler I that "we must remand this matter to the lower court for further proceedings consistent with the present decisional law applicable to the issues and procedures to be followed." Id., slip op. at 3 (emphasis added). It is undisputed that DOT, to date, has failed to file preliminary objections to Appellee's petition. Appellee has twice attempted to have DOT's failure to file preliminary objections considered determinative of the issue of whether or not a de facto taking occurred.*fn3

We must observe that review of this case would have been greatly facilitated had preliminary objections been filed by DOT. We reaffirm our conclusion in Greisler I, however, that new procedures should not be applied retrospectively where to do so would result in the waiver of a basic legal issue. We believe the trial court was correct, therefore, when it decided to treat the pleadings in this case as proper despite the absence of preliminary objections. We will do the same in this appeal. In order to provide some definition to the position of DOT with regard to Appellee's petition, however, we think DOT's arguments on appeal

[ 68 Pa. Commw. Page 498]

    must be limited to those raised by DOT before the trial court.

The next matter for our consideration is a motion filed with this Court by Appellee to quash or strike Appendix D attached to DOT's brief. The challenged appendix contains a copy of a deposition taken by DOT of Bertram Greisler, sole stockholder of Appellee. The deposition was never filed with the trial court, as required by Pa. R.C.P. No. 4017(d), and Appellee contends that DOT's action in appending the deposition to its brief is an improper attempt to expand the record on appeal. We agree and will, accordingly, grant Appellee's motion. "It is a fundamental principle of appellate review that the appellate court is confined to the record before it, excluding matters or facts asserted in briefs." City of Erie v. Pennsylvania Public Utility Commission, 41 Pa. Commonwealth Ct. 194, 198, 398 A.2d 1084, 1087 (1979). We also, of course, will disregard any statements or arguments in DOT's brief which are based solely on the subject deposition.

Before addressing the merits of the appeal before us, we think a brief review of the facts presented is in order. As previously mentioned, Appellee is the owner of a tract of land fronting on Delaware Avenue in Philadelphia on which a meat processing plant is located. The property is bounded on the south by Summer Street and on the west by Water Street. The building has a loading dock which fronts on Delaware Avenue and through which deliveries and shipments of meat were made when the plant was in operation. The plant also has a rear loading dock which is located on the Water Street side of the building. This entrance was used for the delivery of dry goods by trucks to the plant. Appellee's petition informs us that in order to gain access to this entrance, delivery trucks were forced to back across Water Street to unload.

[ 68 Pa. Commw. Page 499]

Thus, the entire width of Water Street would be blocked during the period needed to unload the trucks.

In the late 1960's, DOT began to plan for the construction of an I-95 entrance ramp. It is undisputed that at the time Appellee filed its petition in 1968, the entrance ramp to I-95 was only in the planning stages. Appellee's petition claimed that a de facto taking of its plant had occurred prior to the construction due to, inter alia, DOT's planned condemnation of surrounding properties and the fact that access to Appellee's rear loading dock would be permanently interfered with when the ramp was completed. The record reflects that Appellee stopped operating its facility in 1970*fn4 and subsequently rented the building to another meat processor until sometime in 1975. The record does not indicate exactly when actual construction on the I-95 ramp started, but it is quite apparent that it had not commenced in 1968. To repeat, Appellee's petition alleges a "pre-construction" de facto taking of its property. Our case law is that no de facto taking occurs from a mere proposal to construct or even from the filing of construction plans. County of Allegheny v. The Church of Jesus Christ, 14 Pa. Commonwealth Ct. 510, 322 A.2d 803 (1974). Since that is all that had

[ 68 Pa. Commw. Page 500]

    occurred at the time Appellee filed its petition for the appointment of a board of viewers in the instant case, the petition would have been subject to dismissal had it been brought before the trial court in a prompt and proper manner, i.e., by the filing of preliminary objections. That not having occurred, and neither party having sought a clarification of the order entered in Greisler I if, indeed, such clarification was necessary, the case continued with the de facto issue unresolved until 1981. In the interim, construction of the ramp had occurred and now we have another type of de facto taking, that which arises by virtue of the provisions of Section 612 of the Code, 26 P.S. ยง 1-612.*fn5

Thus, a careful reading of the trial court's decision in this case reveals that its finding of a compensable injury is based upon the actual interference with access to Appellee's building which it concludes resulted after the construction of the I-95 ramp.*fn6 The trial court's finding of injury relates not to the "preconstruction" facts alleged in Appellee's petition, but rather to the existence of "post-construction" consequential damages compensable under Section 612. Since Appellee has not challenged the trial court's ruling in this regard, and, indeed, DOT has argued in its brief that this case does involve an issue of consequential damages under Section 612, we will accordingly limit our review to the issue of whether or not the trial court erred in concluding that DOT is liable

[ 68 Pa. Commw. Page 501]

    to Appellee for consequential damages.*fn7 We do so, as we believe the trial court did, in the interest of the economy of judicial time and expense to the litigants. Even though Appellee's petition as originally filed would not warrant the appointment of a board of viewers, that same petition grounded upon the same cause, to wit, interference with access, could constitute a de facto taking under the provisions of Section 612, had it been filed after construction began. See Pane v. Department of Highways, 422 Pa. 489, 222 A.2d 913 (1966). The trial court, obviously, gave that effect to the petition and we will not here interfere with that construction.

With regard to the issue of consequential damages, DOT argues that the construction of the ramp did not permanently interfere with "legal" access to Appellee's rear loading dock because the use of that entrance by Appellee required the frequent blockage of Water Street. The issue of what effect, if any, such a temporary blockage of Water Street would have on Appellee's claim for consequential damages, however, was not raised by DOT below and was not considered by the trial court in its opinion. We, accordingly, will not address the issue on appeal. See Hawk Sales Co., Inc. v. Pennsylvania Department of Transportation, 38 Pa. Commonwealth Ct. 535, 394 A.2d 657 (1978). We note, however, that a landowner may make temporary use of the street for purposes necessarily incident to abutting land. He, accordingly, may load and unload goods. Use by an abutting landowner of his right to access, however, must be consistent with traffic conditions and reasonable police requirements.

[ 68 Pa. Commw. Page 502]

    consequential damages,*fn8 the amount of those damages must be set by the board of viewers. As we have said, the decision of the trial court, here affirmed, states only that Appellee is entitled to such damages as it is able to prove by reason of the de facto taking pursuant to the provisions of Section 612 of the Code.

Order affirmed.


It is ordered that the order of the Court of Common Pleas of Philadelphia County, dated June 9, 1981, is hereby affirmed.



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