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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA (08/27/85)

decided: August 27, 1985.

IN RE: CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES OF 17.9 ACRES OF LAND SITUATE IN THE BOROUGH OF CANONSBURG, WASHINGTON, COUNTY, PENNSYLVANIA. CANON DEVELOPMENT COMPANY, INC. ET AL., COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, APPELLANT


Appeal from the Order of the Court of Common Pleas of Washington County in the case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Environmental Resources of 17.9 acres of land situate in the Borough of Canonsburg, Washington County, Pennsylvania -- Canon Development Company, Inc., George Street, Canonsburg, Pennsylvania 15317 and The Manufacturers Light and Heat Company, 800 Union Trust Building, Pittsburgh, Penna., Condemnees, and Any and all unknown owners and claimants, No. 104 February Term, 1982, Eminent Domain Proceedings In Rem.

COUNSEL

Michael J. Creighton, Assistant Counsel, with him, Douglas R. Blazey, Chief Counsel, DER, and Jay C. Waldman, General Counsel, for appellant.

John C. Pettit, Patrono, Ceisler, Edwards & Pettit, for appellee, Canon Development Co., Inc.

President Judge Crumlish, Jr., and Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by Judge MacPhail. Concurring Opinion by President Judge Crumlish, Jr.

Author: Macphail

[ 91 Pa. Commw. Page 382]

The Commonwealth of Pennsylvania, Department of Environmental Resources (DER) appeals here from an order of the Court of Common Pleas of Washington County which sustained the preliminary objections of Canon Development Company, Inc. (Canon) to DER's declaration of taking.

Canon owned certain property which DER sought to condemn pursuant to Section 1301 of The Atomic Energy Development and Radiation Control Act (Atomic Energy Act), Act of January 28, 1966, P.L. (1965) 1625, as amended, 73 P.S. §§ 1001-1501, repealed by the Act of July 10, 1984, P.L. 688.*fn1 DER filed a

[ 91 Pa. Commw. Page 383]

    declaration of taking on February 10, 1982, to condemn Canon's property which contained certain residual radioactive materials and which required remedial action. Canon filed preliminary objections to the declaration of taking and alleged that a de facto taking*fn2 had occurred on or about August 23, 1977, the date the Secretary of DER notified Canon by letter of soil contamination findings at Canon's site.*fn3 After a de novo hearing, the trial court sustained Canon's preliminary objections and held that a de facto taking had occurred on or about August 23, 1977, and the instant appeal followed.

Our scope of review is limited to a determination of whether the court abused its discretion or committed an error of law when it sustained Canon's preliminary objections. Sepko Appeal, 84 Pa. Commonwealth Ct. 359, 479 A.2d 665 (1984). There is no dispute between the parties that a taking did occur; disposition of this appeal turns on the determination of whether the taking occurred by the August 23, 1977 letter (August letter) or by the declaration of taking filed February 10, 1982. The trial court held that because DER reported to the community that the subject land was contaminated with radiation and instructed Canon to take certain steps restricting the

[ 91 Pa. Commw. Page 384]

    use of its land as a result of which at least one tenant was forced out, a de facto condemnation occurred in 1977.

DER first argues that it had no power of eminent domain in 1977, taking the position that such power was not vested in DER until the Act of July 2, 1980, P.L. 345 amended The Administrative Code of 1929, Act of April 9, 1929, P.L. 177, 71 P.S. §§ 51-732, by adding § 1904-A.1(2), 71 P.S. § 510-4.1(2). As we have noted, one of the requisites of a de facto taking is that the condemnor must be an entity clothed with the power of eminent domain. DER's next argument is that Canon is somehow precluded from proceeding in an eminent domain case because it failed to exhaust its administrative remedies. DER's third contention is that the August letter was a permissible ...


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