Appeal from the Order of the Court of Common Pleas of Westmoreland County, in case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, of Outdoor Advertising Device in an Area Adjacent to Legislative Route 68, in the Township of Salem, No. 2299 of 1980.
William R. Saul, for appellant.
Walter F. Cameron, Jr., Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellee.
Judges Colins and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish. Judge Palladino dissents.
[ 98 Pa. Commw. Page 528]
William W. Saul (Condemnee) appeals a decision of the Court of Common Pleas of Westmoreland County which confirmed a Board of Viewers report, and which decision limited the scope of the Condemnee's appeal to that contemplated by the declaration of taking filed by the Commonwealth of Pennsylvania, Department of
[ 98 Pa. Commw. Page 529]
Transportation (DOT). We vacate, and remand to the trial court for damages, if any, to be fixed in connection with the Condemnee's de facto taking.
Condemnee had a leasehold interest in a tract of ground at the intersection of U.S. Route 22 and Township Road No. 802 in Salem Township, Westmoreland County. Situated on this tract were four outdoor advertising signs owned by Condemnee.
On March 19, 1980, DOT, as Condemnor filed a declaration of taking as to one of the signs, at No. 2299 of 1980 in the Court of Common Pleas of Westmoreland County. Condemnee filed preliminary objections to this taking which were dismissed. Condemnee did not appeal the dismissal of the preliminary objections. Thereafter, Condemnee filed a petition for appointment of a Board of Viewers, at No. 2299 of 1980.*fn1 In that petition he alleged that on or about March, 1976 he had removed three of the signs at the prodding of DOT, and that this resulted in a de facto taking of the three signs. DOT did not file preliminary objections to this petition.
The common pleas court, at No. 2299 of 1980, appointed a Board of Viewers "to determine the damages sustained by William W. Saul as a result of the acts of the Commonwealth of Pennsylvania, Department of Transportation described in the attached Petition. . . ." The Board of Viewers held a hearing but did not consider the de facto allegations concerning the three signs. It simply limited damages to the one sign set forth in the formal declaration of taking.
Upon appeal, the trial court sustained the Board of Viewers, holding that the Condemnee was barred from asserting his de facto ...