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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA v. COMMONWEALTH PENNSYLVANIA (03/20/86)

decided: March 20, 1986.

IN RE: CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, OF RIGHT OF WAY FOR LEGISLATIVE ROUTE 48032, CLAIM NO. 4802934. DAVID OXFORD, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Northampton County in the case of David Oxford v. Commonwealth of Pennsylvania, Department of Transportation, No. 1980-CM-3223.

COUNSEL

Donald H. Lipson, for appellant.

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

Judges Craig and Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 96 Pa. Commw. Page 69]

This is an eminent domain case wherein the Petitioner, David Oxford, has appealed an order of the Court of Common Pleas of Northampton County. That order sustained the preliminary objections of the Pennsylvania Department of Transportation (PennDOT) and dismissed his petition for appointment of a board of view.

The record presents the following facts which we deem pertinent to our disposition of this appeal. Oxford is the owner of approximately two hundred acres of farmland located in Upper Mount Bethel Township, Northampton County. Certain portions of that tract abut and are located along Legislative Route 48032

[ 96 Pa. Commw. Page 70]

    which is a state highway maintained by PennDOT. On or about August 10, 1979, a PennDOT maintenance crew entered Oxford's land for the purpose of maintaining drainage ditches and channels for that state highway. PennDOT's entry upon Oxford's land is expressly permitted by Section 417 of the State Highway Law*fn1 which authorizes PennDOT to enter upon any lands or enclosures to maintain drainage ditches and systems which are necessary to carry water from the roads or highways. Oxford alleged that PennDOT's maintenance work on the drainage ditches substantially altered the flow of water from the highway which caused flooding of approximately six acres of his farmland rendering them useless for farming. In 1980 he filed a petition for appointment of a board of view seeking damages under the Eminent Domain Code*fn2 and Section 417 of the State Highway Law.*fn3 PennDOT filed preliminary objections to the petition which were dismissed by the common pleas court on February 25, 1981. PennDOT took an appeal to this Court and on June 11, 1984, in an opinion by Judge Barry, this Court reversed the common pleas court's dismissal of PennDOT's preliminary objections and remanded the matter to that court for an evidentiary hearing on the issue of whether a

[ 96 Pa. Commw. Page 71]

    compensable injury has been suffered. Department of Transportation Appeal, 83 Pa. Commonwealth Ct. 184, 476 A.2d 519 (1984). Pursuant to our remand, the common pleas court held an evidentiary hearing on PennDOT's preliminary objections. On February 1, 1985, the common pleas court found that no compensable injury had occurred, sustained PennDOT's preliminary objections, and dismissed Oxford's petition for appointment of a board of view.

In this appeal, Oxford raises two contentions which are: (1) that he is entitled to damages under Section 417 of the State Highway Law; and (2) in the alternative, PennDOT's maintenance activities amount to a de facto taking of his property for which he is entitled to just compensation. We shall address those issues in the order stated. Our scope of review, where the common pleas court has sustained preliminary objections to a petition for appointment of a board of view, is limited to a determination as to whether or not the common pleas court's findings are supported by competent evidence or an error of law committed. Miller Appeal, 55 Pa. Commonwealth Ct. 612, 423 A.2d 1354 (1980).

In his inital contention for damages under Section 417 of the State Highway Law, Oxford concedes that Act 100 repealed the procedural portion of Section 417 and that the exclusive procedure for establishing a compensable injury and determining compensation lies within the Eminent Domain Code. See Department of Transportation Appeal, 83 Pa. Commonwealth Ct. at 186, 476 A.2d at 520. He argues, that the substantive provisions of Section 417, which allow a landowner compensation for damages inflicted upon his land as a result of PennDOT's maintenance activities, were not repealed. He also argues that ...


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