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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA (06/11/84)

decided: June 11, 1984.

IN RE: CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION ETC. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT


Appeal from the Order of the Court of Common Pleas of Northampton County in case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation of Right of Way for Legislative Route 48032, Claim No. 4802934. David Oxford v. Commonwealth of Pennsylvania, Department of Transportation, No. 1980-CM-3223.

COUNSEL

William J. Cressler, Assistant Counsel, with him, Andrew H. Cline, Assistant Counsel, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.

Donald H. Lipson, with him, Steven A. Bergstein, Lipson, Zieger & Roth, for appellee.

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

Author: Barry

[ 83 Pa. Commw. Page 185]

Appellant, Pennsylvania Department of Transportation (DOT), seeks review of an order of the Court of Common Pleas of Northampton County, which dismissed preliminary objections to a petition for the appointment of viewers.

Appellee, David Oxford, filed a petition for the appointment of a board of view to assess damages against DOT pursuant to Section 417 of the State Highway Law (Law)*fn1 claiming that DOT improperly

[ 83 Pa. Commw. Page 186]

    cleaned and maintained three drainage channels over the appellee's property. The appellee's petition averred that DOT's work made his land useless for farming because the flow of water over the land had been changed.

DOT filed preliminary objections in the nature of a demurrer to the petition denying liability under either Section 417 of the Law or the Eminent Domain Code (Code).*fn2 Thereafter, a hearing on the preliminary objections elicited testimony from both parties regarding the Commonwealth's drainage system in the subject area.

The trial court dismissed the preliminary objections and sent the matter to the viewers for further hearing, stating that damages should be sought under the settled procedure of the Law rather than under the Code.

DOT contends that the Code governs the determination of damages under the Law because Article III of the Law was repealed by the Act of December 7, 1979, P.L. 478, No. 100 (Act 100). Act 100 provided no procedure to replace the provisions of Article III.

We agree with DOT that the Code properly governs this proceeding. By repealing Article III, the obvious intent of the Legislature was to have all eminent domain ...


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