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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA (11/05/82)

decided: November 5, 1982.

IN RE: CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, OF TWO (2) BILLBOARDS LOCATED ON T.R. 209, ETC. NORTHEAST OUTDOOR ADVERTISING, INC., APPELLANT


Appeal from the Order of the Court of Common Pleas of Schuylkill County in case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, of eight (8) Billboards located on T.R. 61, Schuylkill County. Northeast Outdoor Advertising, Inc. v. Commonwealth of Pennsylvania, No. S-1882-78.

COUNSEL

Ira. G. Barrows, for appellant.

Scott M. Olin, Assistant Counsel, with him Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellee.

President Judge Crumlish, Jr. and Judges Williams, Jr. and Doyle, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 69 Pa. Commw. Page 546]

This is an appeal from an order of the Court of Common Pleas of Schuylkill County which sustained preliminary objections to a Petition for Appointment of Board of Viewers filed by Northeast Outdoor Advertising, Inc. (Northeast). We affirm.

On October 31, 1978, Northeast filed a Petition for Appointment of Board of Viewers with the court of common pleas pursuant to Section 502(e) of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-502, which authorizes the filing of such petitions where a de facto compensable injury has been suffered without filing

[ 69 Pa. Commw. Page 547]

    a formal declaration of taking. In this petition, Northeast alleged that the Pennsylvania Department of Transportation (D.O.T.) had torn down two Northeast billboards located next to Route 209 in Schuylkill County without compensating Northeast, and accordingly requested the appointment of a Board of Viewers to "ascertain the damages due the Plaintiff pursuant to the Eminent Domain Code for said taking." In response to this petition, D.O.T. filed preliminary objections alleging, inter alia, that Northeast's injury was non-compensable. The parties subsequently submitted certain stipulations and depositions to the court of common pleas for the purpose of ruling on the preliminary objections. In these depositions, it was revealed that D.O.T. had made, and Northeast had accepted, an offer to purchase the billboards in question pursuant to the provisions of Section 9 of the Outdoor Advertising Control Act of 1971, Act of December 15, 1971, P.L. 596, as amended, 36 P.S. § 2718.109, in January of 1977, but that D.O.T. had subsequently refused to pay the compensation, and had removed the billboards, when a survey indicated that they were illegally located in the right of way of Route 209. To establish that the billboards were located in the right of way of Route 209, D.O.T. deposed Joseph P. Nemchik, the professional engineer who had conducted the survey. Northeast, for its part, deposed its president, Francis J. O'Keefe, who testified that his measurements indicated that the billboards were located one foot outside of the right of way. After evaluating this evidence, the court of common pleas concluded that the billboards had been illegally located on property owned by the Commonwealth, and accordingly dismissed the petition for appointment of a Board of Viewers. The present appeal followed.

Before this Court, Northeast simply alleges that the removal of the billboards constituted a "de facto

[ 69 Pa. Commw. Page 548]

    condemnation" that is compensable under the Code. We disagree.

We have recognized that a governmental entity's interference with an individual's property rights can in certain circumstances be so substantial that it can constitute a de facto taking even though the power of eminent domain is not formally exercised. Commonwealth's Crosstown Expressway Appeal, 3 Pa. Commonwealth Ct. 1, 281 A.2d 909 (1971); Hazleton Redevelopment Authority v. Hudock, 2 Pa. Commonwealth Ct. 670, 281 A.2d 914 (1971). It is axiomatic, however, that in order to assert the right of a condemnee, the party must be an owner of a property ...


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