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decided: June 6, 1985.


Appeal from the Order of the Court of Common Pleas of Beaver County in case of Raymond F. Market and Anna L. Market, his wife v. Enon Valley Telephone Co., No. 1339 of 1980.


Dennis J. Gounley, with him, Emmett C. Boyle, Jr., for appellant.

Gregory S. Fox, with him, Kenneth E. Fox, Jr., for appellees.

Judges MacPhail and Barry and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge MacPhail. Concurring Opinion by Judge Barry.

Author: Macphail

[ 90 Pa. Commw. Page 54]

Enon Valley Telephone Company (Appellant) appeals from a decision of the Court of Common Pleas of Beaver County which held that Raymond F. and Anna L. Market (Appellees) were entitled to damages for abandoned underground telephone cable telephone poles and aerial telephone lines. We reverse.

The Appellees filed a petition for an appointment of a board of viewers (Board) pursuant to Section 502(e) of The Eminent Domain Code (Code), Act of June 22, 1963, Special Sess., P.L. 84, as amended, 26 P.S. ยง 1-502(e).*fn1 The petition alleged that Appellant had entered upon Appellees' property to install an underground telephone cable, later abandoned that cable and then installed a telephone line and telephone poles on their land along a road, but not within the road right-of-way.

The trial court granted the petition. Appellant filed preliminary objections to the petition contending that there was no condemnation but rather the use of an easement Appellant mistakenly thought it had acquired and that Appellees' cause of action was in trespass rather than eminent domain. The trial court overruled the objections.

[ 90 Pa. Commw. Page 55]

The Board found that the construction of the underground telephone line damaged Appellees' property by causing the relocation of a drainage stream. The Board also found that the property was damaged when Appellant entered without a right-of-way and without having filed a declaration of taking. The Board awarded damages, attorney fees and costs.

Appellant appealed, and on November 29, 1982, pursuant to a request by Appellant, the trial court ordered a hearing to be held for the limited purpose of determining whether the telephone poles were located on Appellees' property or whether Appellant had acquired an easement by prescription. After an evidentiary hearing, the trial court on March 28, 1983 held that Appellant, a corporation with the power of eminent domain, could not acquire property rights by adverse possession and that Appellant had committed a de facto taking of Appellees' property.*fn2 After Appellant's application for reconsideration was denied, Appellant filed a Notice of Appeal. On April 28, 1983, the trial court ordered Appellant to file a Statement of Matters Complained of, after which the trial court issued a supplementary opinion addressing the issues raised. The instant appeal followed.

Our scope of review in eminent domain cases is limited to a determination of whether the trial court committed an error of law or abused its discretion.

[ 90 Pa. Commw. Page 56]

    at 45-46). Appellant abandoned the underground cable when it discovered its mistake. (N.T. at 50). Obviously, this injury was not a necessary and unavoidable result of the power of eminent domain but was the result of Appellant's negligence.

Where, as here, a landowner has suffered specific damages to his or her property as a consequence of the alleged negligent actions of the condemning body, the proper action lies in trespass. Cf. Steckley v. Department of Transportation, 46 Pa. Commonwealth Ct. 367, 370, 407 A.2d 79, 80 (1979), aff'd mem., 494 Pa. 104, 429 A.2d 1112 (1981) (complaint in trespass is proper where injuries result from negligent actions of Commonwealth). "No recovery may be obtained through eminent domain proceedings where the injuries resulted from a trespass and no de facto taking may result from negligent acts committed by the agents of the condemning body." Lutzko, 48 Pa. Commonwealth Ct. at 79, 410 A.2d at 372. Cf. Culver v. Commonwealth, 346 Pa. 262, 29 A.2d 531 (1943) (removal of land by Commonwealth not within acquired right-of-way is a trespass and not a taking).

We therefore conclude that no condemnation occurred in the instant case.*fn3 Accordingly, the order of the trial court is reversed.


The order of the Court of Common Pleas of Beaver County, No. 1339, dated March 28, 1983, is reversed.



[ 90 Pa. Commw. Page 58]

Concurring Opinion by Judge Barry:

I concur in the opinion in this case. I wish to note, however, that the opinion of Judge MacPhail does not discuss, nor did the parties brief, the issue of whether a public utility can de facto condemn property. As far as I know this issue has not been decided by our appellate courts. No inference should be drawn from this decision that it has.

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