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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA (01/17/83)

decided: January 17, 1983.

IN RE: CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION OF RIGHT OF WAY, FOR LEGISLATIVE ROUTE 67045, SECTION 108 R/W, A LIMITED ACCESS HIGHWAY, IN THE CITY OF PHILADELPHIA. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT


Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, of Right of Way for Legislative Route 67045, Section 108 R/W, a Limited Access Highway in the City of Philadelphia, No. 2910 February Term, 1973.

COUNSEL

Richelle D. Sanders, Assistant Counsel, with her Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.

Martin Burman, with him D. Bruce Hanes, Shein & Brookman, P.A., for appellee, J. Faunce, Inc.

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

Author: Doyle

[ 71 Pa. Commw. Page 225]

This is an appeal by the Pennsylvania Department of Transportation (Department) from an order of the Court of Common Pleas of Philadelphia dismissing preliminary objections and appointing a Board of View under Section 502(e) of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. ยง 1-502(e). We affirm the order of the court of common pleas.

The facts in this case are not in dispute. In December, 1973, the Department condemned a portion of the property located at the southeast corner of 13th and Vine Streets for the proposed construction of a direct highway connection between the Schuylkill Expressway, the Delaware Expressway, and the Benjamin Franklin Bridge. The condemnation consisted of a permanent taking of a portion of the land, a temporary taking of the remaining land, and the

[ 71 Pa. Commw. Page 226]

    condemnation of the building which stood on both the land permanently taken and that subject to the temporary taking. The temporary taking was described in the Department's Declaration of Taking as a "temporary easement for construction."

In September, 1977, J. Faunce, Inc. (Faunce) purchased from the condemnees that land not permanently taken which was subject to the "temporary easement for construction" and on which a portion of the condemned building stood. The purchase did not include any of the condemnation rights of the original owners and in 1979, the Department and the original owners settled the condemnation by stipulating a full, just, compensation price of $395,000.00

An agreement between the Commonwealth and the Chinatown community, entered into by Governor Shapp in 1973 and honored by present Governor Thornburgh provides that no demolition of buildings for the proposed expressway will be undertaken without the approval of the Philadelphia Chinatown Development Corporation (PCDC). PCDC has consistently refused to approve the demolition of the building on this property and other buildings in the area.

In March of 1980, Faunce filed this Petition for Appointment of a Board of View to assess additional damages. Faunce alleges that because the building still stands on its property, it suffers a deprivation of use for which compensation is due, and appointment of a Board of View is appropriate under Section 502(e) of the ...


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