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BOROUGH DICKSON CITY v. JOSEPH MALLEY (01/28/86)

decided: January 28, 1986.

THE BOROUGH OF DICKSON CITY, PENNSYLVANIA, APPELLANT
v.
JOSEPH MALLEY, ADMINISTRATOR OF THE ESTATE OF CHRESTINA MALLEY, HIS WIFE, DECEASED, APPELLEE



Appeal from the Order of the Court of Common Pleas of Lackawanna County in case of Joseph Malley, Administrator of the Estate of Chestina Malley, his wife, Deceased v. The Borough of Dickson City, Pennsylvania, No. 82 Equity 77.

COUNSEL

John P. Pesota, for appellant.

Myles R. Wren, Nogi, O'Malley, Harris & Schneider, for appellee.

Judges Doyle and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 94 Pa. Commw. Page 387]

The Borough of Dickson City (Borough) appeals from a decision of the Court of Common Pleas of Lackawanna County (trial court) which dismissed the Borough's preliminary objections to a Petition for Appointment of a Board of View (Petition) filed by Appellee, Joseph Malley.

Appellee's property is located at the corner of Pancost Street and Throop Street in the Borough. Appellee's house fronts on Pancost Street and the driveway runs to Pancost Street. The west side of the property abuts the 1300 block of Throop Street. Until 1980, the 1300 block of Throop Street was a dirt roadway, which had been formed to provide access to newly constructed homes. In 1980 the Borough paved Throop Street, causing a change in grade from Appellee's property to the road of at least five feet. The paved road does not encroach upon Appellee's property.

Appellee's Petition alleged that the Borough effected a de facto taking of his property. The taking allegedly involves the removal of Appellee's access to Throop Street because of the change in grade, and the undermining of the sand beneath Appellee's pool caused by heavy water runoff during rainstorms. The water runoff also allegedly deposited on Appellee's property stones and gravel left over from the construction of the road. For these reasons, Appellee claims a diminution in the value of the property, and seeks compensation for these damages.

[ 94 Pa. Commw. Page 388]

The Borough filed preliminary objections to Appellee's Petition, asserting: 1) that Appellee has suffered no deprivation of access because his property is accessible from Pancost Street; and 2) that the runoff and gravel deposit damages asserted by Appellee are not properly the subject of an action in eminent domain; rather they are recoverable, if at all, in an action in trespass.

The trial court, in order to establish whether a de facto taking had occurred, received the depositions of Robert D. Bernosky, the Borough Engineer, and of Appellee. After making findings of fact, the trial court concluded that a de facto taking had occurred, due to the substantial impairment of Appellee's access to Throop Street and due to the water runoff, and therefore dismissed the Borough's preliminary objections. The Borough has appealed.

Our scope of review is to determine whether the trial court committed an error of law or abused its discretion in dismissing the preliminary objections. Enon Valley Telephone Co. v. Market, 90 Pa. Commonwealth Ct. 53, 493 A.2d 800 (1985).

A de facto taking occurs when an entity clothed with the power of eminent domain substantially deprives an owner of the use and enjoyment of his property. The landowner must establish that the deprivation was the direct and necessary ...


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