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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA (01/12/84)

decided: January 12, 1984.

IN RE: CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION OF RIGHT OF WAY FOR LEGISLATIVE ROUTE 23047 ETC. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT


Appeal from the Order of the Court of Common Pleas of Delaware County in case of Bryn Mawr Corporation, Successor to Philadelphia Suburban Transportation Company v. Commonwealth of Pennsylvania, Department of Transportation, No. 68-12626.

COUNSEL

John T. Clary, Jr., Assistant Counsel, with him Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.

Andrew J. Forbes, Cramp, D'Iorio, McConchie & Forbes, P.C., for appellee.

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

Author: Williams

[ 79 Pa. Commw. Page 513]

The Pennsylvania Department of Transportation (DOT) has appealed from a judgment entered by the Court of Common Pleas of Delaware County following a jury verdict in an eminent domain case. The appellant, DOT, argues that the trial court erred in denying its motion for a new trial.

On October 2, 1968, the Pennsylvania Department of Highways, predecessor to DOT, filed a Declaration of Taking to condemn a highway easement in a certain

[ 79 Pa. Commw. Page 514]

    strip of land located in the middle of Darby Road, Haverford Township, Delaware County. The condemned land is about 1.54 miles long,*fn1 and has a width that varies between 30 feet and 80 feet. Until about 1967, the strip was occupied by tracks for a trolley service that was owned and operated by the Philadelphia Suburban Transportation Company (Company).

The Declaration of Taking recited that the condemnees were those set forth on an attached schedule. The only condemnee named on that list was the Company. According to the condemnor's list of condemnees, the Company was the "fee owner" of part of the condemned strip; as to the rest of that strip, the Company was listed as having easements, "fee owners unknown."

On April 23, 1970, the Company filed a petition, pursuant to Section 502 of the Eminent Domain Code (Code),*fn2 for the appointment of viewers to ascertain just compensation. The petition alleged, inter alia, that the condemned land consisted of 7.529 acres, and that the Company owned 4.336 of the acres "in fee." The petition also alleged that, as to the remaining part of the condemned property, the Company had easements or "conditional fee title." And, according to the petition, the property taken was an integral part of the Company's transit system.

On April 23, 1970, the trial court entered an order appointing a board of viewers. By that time DOT had become the successor agency to the Department of Highways. The condemnor did not, at any time, file preliminary objections to the petition for viewers.

Viewers' proceedings were conducted in October of 1977 and February of 1978. As a result of those

[ 79 Pa. Commw. Page 515]

    proceedings, the viewers awarded $500,000 as "general damages." On November 9, 1979, the viewers issued their report, which contained five short paragraphs. The report did not state for what property the award was made. As to who was entitled to receive the damages, the report simply declared that the award was " to the owners," subject to any liens or encumbrances of record, " or any other interest that may appear." (Emphasis added.) DOT took a timely appeal to the trial court; but, in doing so, did not set forth any specific objections to the report. On its appeal form, DOT described the involved property and the condemnee's interest therein as follows: "7.529 acres of which 4.336 were owned in fee simple, with remaining 3.163 [sic] acres held by way of easement, along a total linear distance of 1,538 [sic] miles with a width from minimum 30 feet to maximum 80 feet." DOT demanded a jury trial.

On February 12, 1980, DOT petitioned the trial court to preliminarily determine what title or other legal interests the Company had, at the time of condemnation, in the land that was condemned. The petition averred that such a determination in advance of trial was essential to a proper assessment of damages. The Company filed an answer which opposed the petition on various grounds. The trial court, by an order dated May 29, 1980, dismissed DOT's petition.

On January 26, 1981, the matter came on for trial. By that time, the Bryn Mawr Corporation (BMC) had succeeded to the interests of the Philadelphia Suburban Transportation Company. Just prior to the commencement of the trial, DOT made an offer of proof which, according to DOT, would show that the condemnee had lost its easements in the condemned land before the Declaration of Taking was filed.

According to its offer of proof, DOT proposed first to show, by certain deeds, that the condemnee's

[ 79 Pa. Commw. Page 516]

    easements in the condemned land had been originally acquired for railtraction purposes. DOT also proposed to show that the trolley service over that land had been abandoned in 1967. Regarding the latter point, DOT wished to introduce certain orders of the state Public Utility Commission, issued in 1966 and 1967, showing that the trolley service along the subject corridor and other routes had been officially decleared abandoned; and showing that the condemnee had been directed to remove the tracks. DOT further proposed to prove that, although the condemnee had replaced the trolleys with bus service along the land-corridor here in question, less than 50% of the condemned property itself continued to be used by the ...


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