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BOROUGH BARNESBORO v. REGINALD L. PAWLOWSKI (08/22/86)

decided: August 22, 1986.

BOROUGH OF BARNESBORO, A MUNICIPAL CORPORATION, APPELLANT
v.
REGINALD L. PAWLOWSKI, APPELLEE



Appeal from the Order of the Court of Common Pleas of Cambria County, in case of Reginald L. Pawlowski, Trustee of Trust of Reginald L. Pawlowski and Loretta Pawlowski, husband and wife v. Borough of Barnesboro, a municipal corporation, No. 1985-1957, Argument Court No. 5273.

COUNSEL

Vasil Fisanick, with him, Christian A. Fisanick, for appellant.

No appearance for appellee.

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

Author: Palladino

[ 100 Pa. Commw. Page 95]

This is an appeal from an order of the Court of Common Pleas of Cambria County (trial court) dismissing preliminary objections of the Borough of Barnesboro (Barnesboro) to a petition for the appointment of viewers. The petition was filed by Reginald L. Pawlowski (Pawlowski) as trustee of a trust which, he avers, held title to the subject property on behalf of Reginald L. Pawlowski and Loretta Pawlowski, husband and wife. For the reasons which follow, we vacate the order of the trial court and remand the case for further proceedings.

Pawlowski filed a petition for appointment of viewers pursuant to Section 502(e) of the Eminent Domain Code (Code)*fn1 on July 26, 1985. In the petition,

[ 100 Pa. Commw. Page 96]

Pawlowski characterizes Barnesboro as the "condemnor" and, in the first count, avers that the realty in question was taken by Barnesboro. In the second count, Pawlowski avers that Barnesboro intends to appropriate additional realty in the same manner as count one and without condemnation proceedings. Pawlowski claims title to the land in question by operation of law.*fn2

On August 13, 1985, Barnesboro filed preliminary objections in the nature of a demurrer, seeking dismissal of the petition on the ground that it does not sufficiently allege a de facto taking. By order dated November 5, 1985, the trial court dismissed the preliminary objections and ordered the case to proceed "sec. leg."

On November 26, 1985, Barnesboro appealed the trial court's order to this Court. On appeal, Barnesboro alleges that the trial court should have sustained its preliminary

[ 100 Pa. Commw. Page 97]

    objections because the petition did not plead facts sufficient to allege a de facto taking and that an evidentiary hearing should have been conducted by the trial court prior to the dismissal of the objections in ...


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