Appeals from the Order of the Court of Common Pleas of Philadelphia County in case of John F. McCracken v. City of Philadelphia and Pennsylvania Department of Transportation, No. 4064 February Term, 1977.
Alan J. Davis, City Solicitor, with him Richard S. Kohn, Assistant City Solicitor, for appellant, City of Philadelphia.
Thomas J. Hines, Assistant Counsel, with him Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant, Department of Transportation.
Louis J. DiGiacomo, Philips, Curtin & DiGiacomo, for appellee.
President Judge Crumlish, Jr. and Judges Rogers, Blatt, MacPhail and Doyle. Opinion by President Judge Crumlish, Jr. Judge Mencer did not participate in the decision in this case.
[ 69 Pa. Commw. Page 493]
The City of Philadelphia and the Commonwealth of Pennsylvania, Department of Transportation (DOT), appeal a Philadelphia County Common Pleas Court Order dismissing their preliminary objections and appointing a Board of View to assess damages in the de facto taking of property owned by John McCracken. We affirm.
[ 69 Pa. Commw. Page 494]
In December of 1974, DOT began construction of Legislative Route 1000 (LR-1000), Section B-53,*fn1 also known as Interstate 95. The construction of the highway itself occurred approximately one block east and south of the McCracken property; however, construction in the immediate area of the property was necessary because of a decision to build a new Market-Frankford Elevated Train (El) structure in conjunction with the highway project. It is the construction activities connected with the El project which McCracken alleged, and the lower court found, constituted a de facto taking under Section 502(e) of the Eminent Domain Code.*fn2
A de facto taking occurs when an entity clothed with the eminent domain power substantially deprives an owner of the use and enjoyment of his property. Conroy-Prugh Glass Co. v. Commonwealth, 456 Pa. 384, 321 A.2d 598 (1974). Where a de facto taking is alleged, the property owner bears a heavy burden of proof. Helms v. Chester Redevelopment Authority, 32 Pa. Commonwealth Ct. 377, 379 A.2d 660 (1977). He must show that exceptional circumstances exist which substantially deprive him of the use of his property and that the deprivation is the direct and necessary consequence of the actions of the entity having the eminent domain power. Petition of 1301 Filbert Ltd. Partnership, 64 Pa. Commonwealth Ct. 605, 441 A.2d 1345 (1982).
[ 69 Pa. Commw. Page 495]
Where the lower court has dismissed preliminary objections to a petition for an appointment of viewers, our scope of review is limited to a determination of whether the court abused its discretion or committed an error of law. Pidstawski v. South Whitehall Township, 33 Pa. Commonwealth Ct. 162, 380 A.2d 1322 (1977). thus, we must decide whether the lower court*fn3 properly concluded that the construction activities incident to the El project amounted to such exceptional circumstances as to substantially deprive McCracken of the use and enjoyment of his property.
McCracken's property is located on three lots at the corner of Front and Richmond Streets in Philadelphia. A three-story building stands on the one lot with an attached one-story addition on the other lots. The entire first floor of the premises has been operated as a bar and restaurant ...