Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Holmes Protection of Pittsburgh, Inc., Lessee, and Pittsburgh Fire and Protection Company, Lessor v. Port Authority of Allegheny County, No. GD 83-12556.
Samuel P. Kamin, with him, Robert J. Garvin, Goldberg & Kamin, for appellants.
Dennis L. Veraldi, with him, Jo Ann Haller, Eckert, Seamans, Cherin & Mellott, for appellee.
Judges Craig and Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle. Dissenting Opinion by Senior Judge Kalish.
[ 90 Pa. Commw. Page 343]
Appellants appeal from the order of the Allegheny County Court of Common Pleas which sustained the preliminary objections of the Port Authority of Allegheny County (Port Authority) to Appellants' petition for appointment of viewers filed under Section 502(e) of the Eminent Domain Code (Code).*fn1
[ 90 Pa. Commw. Page 344]
Appellants, Holmes Protection of Pittsburgh, Inc. (Holmes) and Pittsburgh Fire and Protection Company (Pittsburgh Fire) own and maintain communication cable used in providing burglar alarm, fire alarm and other services to their customers. Holmes is the lessee of a right-of-way granted to Pittsburgh Fire by an 1896 Pittsburgh Ordinance which permits the grantee
to enter upon, use and occupy the streets, avenues and highways of the City of Pittsburgh, for the purpose of erecting and maintaining poles or other supports, . . . and to place and maintain therein and thereon such wires, cables, tubes and other electrical devices and appliances as may be necessary. . . .
On August 7, 1981, the Port Authority excavated a portion of Liberty Avenue between Fifth and Sixth Avenues in connection with its construction of a light rail transit system in Pittsburgh. As a result of this excavation, telegraph and telephone cables owned by Appellants were removed.
On August 3, 1983, Appellants filed a petition for the appointment of viewers pursuant to Section 502(e) of the Code, alleging that their right-of-way granted by the ordinance had been interfered with. On August 15, 1983, the Port Authority filed preliminary objections to Appellants' petition, alleging that there had been no compensable taking under the Code.
A hearing was held in the court of common pleas on December 9, 1983, at which time evidence was presented by both sides. After a consideration of the evidence, the court entered an order sustaining the preliminary objections and dismissing Appellants' ...