No. 02252 PHL 83, Appeal from the Order entered July 26, 1983 in the Court of Common Pleas of Montgomery County, Civil Division, at No. 82-9029.
Lawrence F. Flick, Norristown, for appellant.
Edward J. Hughes, Norristown, for appellees.
Rowley, McEwen and Hoffman, JJ.
[ 341 Pa. Super. Page 600]
On September 21, 1982, appellant Alfred J. Hoch, III filed a complaint against appellee Philadelphia Electric Company (PECO), Pennsylvania Power & Light Company (PP & L), and K.W. Reese, Inc. (Reese), alleging trespass (Count I), conspiracy (Count II), nuisance (Count III), and unconstitutional taking (Count IV). The allegations in all four counts stem from the defendants' actions in clearing a right-of-way on appellant's property in order to construct a high voltage transmission line. On July 26, 1983, the lower court granted appellee's preliminary objections in the nature of a demurrer to all counts of appellant's complaint and dismissed the complaint as against appellee, thereby prompting this appeal. We affirm in part and reverse in part.
In ruling upon a demurrer, we look to the following principles of law:
A demurrer admits all relevant facts pleaded in the complaint and all inferences fairly deducible therefrom, but not conclusions of law . . . . A demurrer may not be sustained unless the complaint evidences on its face that the claim cannot be sustained because the law will not permit recovery . . . . In ruling on a demurrer, a court may not consider factual matters not disclosed in the record . . . . If there is any doubt, the doubt should be resolved in favor of overruling the demurrer; . . . .
Chorba v. Davlisa Enterprises, Inc., 303 Pa. Superior Ct. 497, 500, 450 A.2d 36, 37-38 (1982) (citations omitted). Here, appellant alleged in his complaint that: (1) on or about June 10, 1980, appellee and PP & L employed Reese to go upon appellant's land for the purpose of clearing a
[ 341 Pa. Super. Page 601]
right-of-way granted to PP & L by appellant's predecessor-in-title on or about February 9, 1927; (2) pursuant to said employment, Reese entered appellant's property, removed from a 9,280 square foot area therein all plantings, bushes, shrubs, and trees, and damaged appellant's access road; (3) an expenditure of $21,550 will be required to return appellant's land to its condition prior to Reese's entry; (4) prior to Reese's entry, appellee and PP & L, through their representatives, had been warned that they had no right to enter appellant's land; (5) the sole purpose of the defendants' acts was to accommodate appellee in the erection, construction, and maintenance of a high voltage transmission line adjacent to the easement granted to PP & L; (6) the transmission line causes electromagnetic radiation, noise, and vibrations to be emitted on a continuous and daily basis onto appellant's land, interfering with appellant's, and others', use and enjoyment of such land, thereby rendering it useless and valueless, as well as unsafe and hazardous; and (7) PP & L allowed appellee and Reese to enter appellant's land for the purpose of building appellee's transmission line without compensating appellant.
In its October 3, 1983 opinion, the lower court sustained appellee's preliminary objections on three grounds: (1) because the damage to appellant's property was the direct and immediate consequence of the exercise of the power of eminent domain, the appropriate remedy was not an action in trespass, but rather the eminent domain provisions of the Business Corporation Law, see 15 P.S. §§ 3272, 1322, 3021-23; (2) the defendants had acted within the rights of, and had not exceeded the scope of, the easement granted by appellant's predecessor-in-title, and therefore appellant failed to state a cause of action in trespass; and (3) the Public Utility Commission (PUC), and not the lower court, was the proper forum to contest the safety of ...