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COMMONWEALTH PENNSYLVANIA v. GREISLER BROTHERS (08/30/82)

decided: August 30, 1982.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT
v.
GREISLER BROTHERS, APPELLEE



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.

COUNSEL

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, ...


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