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STEVE BELUSCHOK AND MARY BELUSCHOK v. PEOPLES NATURAL GAS COMPANY (01/18/84)

decided: January 18, 1984.

STEVE BELUSCHOK AND MARY BELUSCHOK, HIS WIFE, APPELLANTS
v.
THE PEOPLES NATURAL GAS COMPANY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Westmoreland County in case of Steve Beluschok and Mary Beluschok, his wife, v. The Peoples Natural Gas Company, a Corporation, No. 504 of 1975.

COUNSEL

A. C. Scales, Scales, DeRose and Murry, for appellants.

Christ C. Walthour, Jr., Walthour and Garland, for appellee.

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

Author: Macphail

[ 79 Pa. Commw. Page 542]

Mr. & Mrs. Beluschok (Appellants) appeal here from an order of the Court of Common Pleas of Westmoreland County sitting as a court en banc dismissing the exceptions of Appellants to an order of the Court entered September 1, 1976.

On February 13, 1973, Appellants instituted an eminent domain proceeding by filing a petition for a board of viewers alleging that Peoples Natural Gas Company (Company) appropriated land of theirs by constructing pipelines and constructing a "deeper well" thereon and have thereby caused a substantial diminution of the value of their land for which Appellants claim they are entitled to damages. Appellants requested the appointment of a board of viewers. No declaration of taking was filed by the Company.

In response to Appellants' petition, the court of common pleas appointed a board of viewers whereupon Company filed a preliminary objection in the nature of a petition raising a question of jurisdiction wherein Company alleged it was merely exercising rights to the land accorded to it by agreements made with Appellants' predecessors in title. There followed an order of the court en banc dated August 1, 1975 which sustained the preliminary objections but which also assigned the case to a judge of that court for a determination of whether or not there was a de facto condemnation. Of course, if a preliminary objection raising a question of jurisdiction is sustained, the court is then without power or authority to act further in the proceedings.

We are aware that much confusion has been engendered by the preliminary objection proceeding in eminent domain cases but, as Judge Rogers wrote in Department of Transportation v. Florek, 71 Pa. Commonwealth Ct. 615, 619, 455 A.2d 1263, 1265 (1983):

[ 79 Pa. Commw. Page 543]

[P]reliminary objections in the context of eminent domain actions alleging a de facto taking serve a very different purpose from preliminary objections in other civil actions and . . . the appropriate response in such a case to the interposition of preliminary objections is the receipt by the trial court of evidence by means of deposition or otherwise.

In view of the fact that the trial court did refer to a hearing judge the issue of whether or not a de facto taking had occurred and an evidentiary hearing on that issue was held by that judge, we believe the order of August 1, 1975 sustaining the preliminary objections was premature and inappropriate, but not fatally defective so as to require a remand.

After a hearing on the issue of a de facto taking was held, the hearing judge concluded that the Appellants had not suffered a de facto condemnation. An order was entered on September 1, 1976 sustaining the preliminary objection and ...


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