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CONSTRUCTION COMMONWEALTH PENNSYLVANIA (02/07/84)

decided: February 7, 1984.

IN RE: CONSTRUCTION OF THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, OF LEGISLATIVE ROUTE 115 ETC. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT


Appeal from the Order of the Court of Common Pleas of Beaver County in the case of In Re: Construction of the Commonwealth of Pennsylvania, Department of Transportation, Legislative Route 115, Section 11A and Legislative Route 76, Section 22A, a Limited Access Highway, in Center Township v. Hazel M. Pettibon, No. 2137 of 1975.

COUNSEL

Jeffrey L. Giltenboth, Assistant Counsel, with him Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.

Edward J. Tocci, Duplaga, Tocci, Palmieri & McMillen, for appellee.

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

Author: Williams

[ 80 Pa. Commw. Page 166]

This is an appeal by the Commonwealth's Department of Transportation (Commonwealth) from an order entered by the Court of Common Pleas of Beaver County confirming a viewers' award of delay compensation in favor of Hazel M. Pettibon (Pettibon) under Section 611 of the Eminent Domain Code (Code).*fn1

The controversy between Pettibon and the Commonwealth began over a decade ago when Pettibon, on December 9, 1972, filed a petition for appointment

[ 80 Pa. Commw. Page 167]

    of a board of viewers. She alleged that a de facto taking had occurred when the Commonwealth, on October 4, 1968, filed a plan to change a highway abutting her property into a limited access highway. The Commonwealth filed preliminary objections to the petition. Pursuant to a negotiated disposition, the petition for viewers was dismissed and the plan declared null and void.

On August 9, 1973, the Commonwealth filed a new plan. More than two years later, in November of 1975, the Commonwealth filed a declaration of taking asserting, inter alia, that its purpose was "to establish the liability of the Commonwealth of Pennsylvania, Department of Transportation, for consequential damages to the properties abutting the said highway improvement, under the terms of Section 612 of the Eminent Domain Code."*fn2 In August of 1976, the Commonwealth paid Pettibon a pro tanto payment of $4,325.00.

After the declaration was filed, Pettibon filed a second petition for appointment of viewers, again asserting a de facto taking. In response to preliminary objections filed by the Commonwealth, the petition for viewers was dismissed as to the alleged de facto taking. However, a board of viewers was appointed to assess damages in connection with the declaration of taking filed by the Commonwealth.

In a report submitted on December 8, 1981, the board of viewers found that 244 feet of Pettibon's access to the existing highway was taken by the Commonwealth for the purpose of converting that highway to one of limited access. The board assessed general damages in the ...


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