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COMMONWEALTH PENNSYLVANIA v. ERIC AND HAZEL M. KEMP (09/10/86)

decided: September 10, 1986.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT
v.
ERIC AND HAZEL M. KEMP, H/W, APPELLEES



Appeals from the Orders of the Court of Common Pleas of Delaware County in the cases of Eric A. Kemp and Hazel M. Kemp v. Commonwealth of Pennsylvania, Department of Transportation, No. 84-4190 and Eric A. Kemp and Hazel M. Kemp v. Commonwealth of Pennsylvania, Department of Transportation, No. 84-7275.

COUNSEL

J. Matthew Wolfe, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.

George D. Harwood, with him, Murray S. Eckell, Eckell, Sparks, Levy, Auerbach & Monte, for appellees.

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

Author: Doyle

[ 100 Pa. Commw. Page 437]

This is a consolidated appeal by the Pennsylvania Department of Transportation (Department) from two orders of the Court of Common Pleas of Delaware County which disposed of Eric A. and Hazel Kemp's

[ 100 Pa. Commw. Page 438]

(Kemp's) petition alleging a de facto taking under Section 502(e) of the Eminent Domain Code,*fn1 and the Department's subsequently-filed declaration of taking. The trial court's orders dismissed the Department's preliminary objections to Kemp's petition and struck the Department's declaration of taking, finding that the Department's pre-condemnation activities constituted a de facto taking of Kemp's property.

Hazel Kemp is the present owner of property located on the corner of Calcon Hook Road and Elmwood Avenue in Sharon Hill, Pennsylvania. Situated upon the property, facing Calcon Hill Road, is a single-family residential dwelling in which Mrs. Kemp has lived since 1960, when she and her now-deceased husband first purchased the property. Early in the 1970's the Kemps became aware that the Department was planning improvements to Calcon Hook Road which would involve reconstructing a bridge over the railroad and widening the road. Public hearings on this proposal were held in the Spring of 1971, but no further action was taken. In 1976, the Pennsylvania Public Utility Commission ordered the Department to reconstruct the railroad bridge on Calcon Hook Road. Public hearings on this project were held in 1981, and again in 1982. At that time the Department informed residents that Calcon Hook Road would be widened to twenty-seven feet, the grade of the road altered significantly, and a retaining wall erected. Accordingly, the Department's project required the condemnation of a section of Kemp's frontage on Calcon Hook Road, ranging in depth from eighteen feet to six and one-half feet. Upon the completion of the project, the front door of Kemp's house would be located six feet from the road right-of-way, where a retaining

[ 100 Pa. Commw. Page 439]

    wall two feet in height would be built. The road and the sidewalk would be elevated on the other side of the retaining wall, with no access provided to Kemp's property. Soon after the public hearings were held the Department entered Kemp's property in order to survey the land and take soil samples in preparation of the project. In 1983, the Department informed Kemp of its intent to take the property frontage, and made an offer of $10,400 as just compensation.

On April 11, 1984, Mrs. Kemp filed a petition for appointment of viewers, alleging that the Department's activities had resulted in a de facto taking of her entire property. On June 19, 1984, the Department filed a declaration of taking for the Kemp property frontage.*fn2 Each party filed preliminary objections to the other's petition, and both matters were heard together by the court of common pleas. After the hearing, the court

[ 100 Pa. Commw. Page 440]

    found that the Department's pre-condemnation plans and activity had put properties abutting Calcon Hook Road in "imminence of condemnation" since at least 1981. The court found that, as a result, Kemp had suffered and would continue to suffer great financial loss, that she would be unable to sell her property at any price, and that therefore the entire value of her property had been totally destroyed. The court thus concluded that there had been a de facto taking, and found the date of the take to be April 28, 1981.*fn3

On appeal the Department argues that the trial court erred in finding that there was a de facto taking, contending that the Department's activity did not substantially deprive Kemp of the use and enjoyment of her property.

In order for a condemnee to prove that a de facto taking has occurred, he must show exceptional circumstances which have substantially deprived him of the use and enjoyment of his property. Department of Transportation v. Lawton, 50 Pa. Commonwealth Ct. 144, 412 A.2d 214 (1980). A condemnee must show that an entity, clothed with the power of eminent domain, exercised that power and that the damages sustained by the condemnee were the immediate, necessary and unavoidable consequence of that exercise. Lawton. In the present case the Department concedes that there has been an actual ...


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