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IRVING MILLER v. COMMONWEALTH PENNSYLVANIA (09/12/85)

decided: September 12, 1985.

IRVING MILLER, INDIVIDUALLY AND AS LIQUIDATING TRUSTEE FOR MILLERS, INC., APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeals from the Orders of the Court of Common Pleas of Philadelphia County in cases of In re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, etc. v. Claim of Irving Miller, Individually and as Liquidating Trustee for Miller's Inc., No. 3744 July Term, 1984, dated September 27th, 1984 and October 12, 1984.

COUNSEL

Lewis Kates, Kates, Livesay & Mazzocone, for appellant.

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

Judges Rogers and Doyle, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 91 Pa. Commw. Page 623]

Appellant, Irving Miller, appeals from the orders of the Philadelphia County Court of Common Pleas which overruled Appellants' preliminary objections to a declaration of taking filed by the Department of Transportation (Department).

Appellant is the successor-in-interest to Millers, Inc., the former owner of a commercial property on 1517-23 Spring Street, Philadelphia, Pennsylvania.

[ 91 Pa. Commw. Page 624]

On August 31, 1972, the Department condemned an easement to Appellant's property for the purpose of constructing a limited access highway known as the Vine Street Expressway. Due to the community opposition and a lack of funding, the construction of the highway was delayed and the property leased to a private party for use as a parking lot. In the meantime, the original design of the highway, which contemplated use of the property as part of the highway interchange, was revised, and a new "scaled-down" design proposed in which the property was to be used as a multi-level parking garage adjacent to the highway. In accordance with this new design, the Department agreed to acquire fee simple title to the property and then to lease the property to the Philadelphia Parking Authority, which would reimburse the Department for its acquisition costs. The Department filed a declaration of taking for this purpose on July 23, 1984.

Appellant filed preliminary objections to the declaration of taking, alleging that the 1979 amendment*fn1 to Section 2003 of the Administrative Code of 1929 (Code),*fn2 which first allowed the Department to condemn the fee underlying existing easements, could not be applied retroactively to easements acquired before the amendment's effective date. Appellant also alleged that parking does not constitute a "transportation purpose" under Section 2003(e) of the Code,*fn3 and that therefore the past use of the property constituted an abandonment of the highway easement, or, alternatively, that the proposed use of the property as a parking garage involves a use for which the Department has no authority to condemn.

[ 91 Pa. Commw. Page 625]

The court of common pleas considered the preliminary objections, and on September 27, 1984, overruled said objections without holding an evidentiary hearing or directing the taking of depositions. Appellant appealed this order, and also the order of October 12, 1984 which denied Appellant's petition for reconsideration. The two appeals were consolidated before our Court.*fn4

Initially Appellant argues that the trial court erred in failing to hold an evidentiary hearing. Section 406 of the Eminent Domain Code,*fn5 which sets forth preliminary objections as the exclusive method for ...


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