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COMMONWEALTH PENNSYLVANIA v. GORDON H. & ELIZABETH A. MCGOWAN AND RONALD G. & BEATRICE M. FRICKER (09/08/82)

decided: September 8, 1982.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT
v.
GORDON H. & ELIZABETH A. MCGOWAN AND RONALD G. & BEATRICE M. FRICKER, APPELLEES



Appeals from the Orders of the Court of Common Pleas of Montgomery County in the case of Gordon H. McGowan and Elizabeth A. McGowan v. Commonwealth of Pennsylvania, Department of Transportation, No. 74-07728, and in the case of Ronald G. Fricker and Beatrice M. Fricker v. Commonwealth of Pennsylvania, Department of Transportation, No. 74-07729.

COUNSEL

Sandra L. Guydon, Assistant Counsel, with her Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.

William H. Bradbury, with him James J. Oliver, Wright, Manning & Sagendorph, for appellees.

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

Author: Macphail

[ 68 Pa. Commw. Page 600]

The Department of Transportation (DOT) has filed two appeals from an order of the Court of Common Pleas of Montgomery County which dismissed its preliminary objections to petitions for the appointment of viewers by the Appellees.*fn1 The appeals were consolidated for argument before this Court. We affirm.

Appellees are the owners of two parcels of land which front on DeKalb Pike in East Norriton Township, Montgomery County. The controversy in these appeals centers on a project undertaken by DOT in 1974 to widen DeKalb Pike, including the portion along Appellees' properties. Appellees allege that as a result of the project, DOT has taken a strip of their

[ 68 Pa. Commw. Page 601]

    land which is thirteen feet wide and runs the full length of their frontage on the highway. As a consequence, Appellees filed petitions for the appointment of viewers*fn2 to assess damages for an actual taking which Appellees allege occurred on April 22, 1974. The petitions were granted on the same day they were filed, May 31, 1974. DOT subsequently filed preliminary objections and additional preliminary objections to the petitions. The additional preliminary objections were dismissed, after oral argument, by the trial court on April 11, 1975. An appeal from that order was taken by DOT to this Court.

On appeal, we ordered, per the late President Judge Bowman, that the matter be remanded for the trial court, by evidentiary hearing or otherwise, to resolve the factual and legal issues raised by the petitions for the appointment of viewers and the preliminary objections. McGowan v. Department of Transportation, 24 Pa. Commonwealth Ct. 154, 354 A.2d 11 (1976). The trial court, accordingly, conducted an evidentiary hearing and dismissed all preliminary objections by order dated May 14, 1981. That order is the subject of the instant appeals.

Before proceeding to the merits, we note our agreement with the trial court's decision to disregard a report of the board of viewers filed after the remand by this Court. The board held a hearing following our remand apparently in the belief that it was to conduct the evidentiary hearing required by our decision. The law is clear, however, that the trial court must resolve the legal and factual issues raised by the pleadings before the matter may proceed to a board of viewers. Jacobs v. Nether Providence Township, 6 Pa. Commonwealth Ct. 594, 297 A.2d 550

[ 68 Pa. Commw. Page 602]

(1972). Thus, the trial court was correct in disregarding the report of the ...


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