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EUGENE L. VISCO AND MICHAEL VISCO v. COMMONWEALTH PENNSYLVANIA (05/23/85)

decided: May 23, 1985.

EUGENE L. VISCO AND MICHAEL VISCO, APPELLANTS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Eugene L. Visco and Michael Visco v. Commonwealth of Pennsylvania, Department of Transportation, No. 2838 May Term, 1982.

COUNSEL

C. Stephens Vondercrone, Jr., Pearlstine, Salkin, Hardiman & Robinson, for appellants.

Thomas J. Hines, with him, William J. Cressler, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellee.

Judges Craig and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish.

Author: Kalish

[ 92 Pa. Commw. Page 104]

This is an appeal from an order of the Court of Common Pleas of Philadelphia County sustaining the preliminary objections of the Pennsylvania Department of Transportation (DOT) and dismissing the petition of Eugene L. and Michael Visco (appellants) for the appointment of a board of view.*fn1

What we are concerned with in this case is a situation where a governmental agency such as DOT, although clothed with the power of eminent domain, but prior to its formal exercise, engaged in conduct which the property owner contends impinged upon the beneficial use of his property and resulted in a diminution in value, for which he seeks compensation. A de facto taking is not the physical seizure of property; rather, it is an interference with one of the rights of ownership that substantially deprives the owner of the beneficial use of his property. Miller Appeal, 55 Pa. Commonwealth Ct. 612, 423 A.2d 1354 (1980).

[ 92 Pa. Commw. Page 105]

The property owner contends that DOT's conduct, in toto, meets the criteria set down in our cases for a de facto condemnation. We affirm the action of the trial court.

Our scope of review is to determine whether the findings are supported by substantial evidence in the record and whether an error of law was committed. Petition of Ramsey, 31 Pa. Commonwealth Ct. 182, 375 A.2d 886 (1977).

Our courts have recognized the need to preserve some degree of flexibility in land use, and road and highway planning due to the tremendous financial burden on agencies absent this flexibility and seek to balance this with the property rights of the owner. Thus, there are no hard-and-fast rules to a determination of a de facto taking; rather, it depends on the factual situation in each case.

It has been held that where rumors begin to take on substance and an agency drafts plans, newspaper articles appear, and the agency announces, publishes, and plots its final plan on the city map, this conduct does not constitute a de facto taking. Commonwealth Appeal, 422 Pa. 72, 221 A.2d 289 (1966). Likewise, where the property is in the line of taking, but actual taking is postponed pending the governor's approval, no de facto taking occurs. Department of Transportation v. Securda and Co., Inc., 16 Pa. Commonwealth Ct. 40, 329 A.2d 296 (1974). Also, there is no taking where the project is approved and funded, with the issuing of notices to and negotiations with the project owners, even though there ...


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