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COMMONWEALTH PENNSYLVANIA v. RONALD AND MARGARET SMOLUK (09/10/86)

decided: September 10, 1986.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT
v.
RONALD AND MARGARET SMOLUK, APPELLEES



Appeal from the Order of the Court of Common Pleas of Delaware County, in case of Ronald F. Smoluk and Margaret V. Smoluk, his wife v. Commonwealth of Pennsylvania, Department of Transportation, No. 84-7370.

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 423]

The Pennsylvania Department of Transportation (Department) appeals from the order of the Court of Common Pleas of Delaware County which dismissed the Department's preliminary objections to a petition alleging a de facto taking under Section 502(e) of the Eminent Domain Code.*fn1

Ronald F. and Margaret V. Smoluk are the present owners of a property located on the corner of Calcon Hook Road and Elmwood Avenue in Sharon Hill, Pennsylvania. Situated on the property, facing Elmwood Avenue, is a single-family residential dwelling in which the Smoluks currently reside. On October 15, 1981, the Department held a public hearing in which it was announced that the Department planned to widen a portion of Calcon Hook Road in conjunction with a bridge

[ 100 Pa. Commw. Page 424]

    reconstruction project. At that time the Department indicated that the plan would require the condemnation of a portion of the Smoluks' frontage along Calcon Hook Road.

On March 15, 1984, the Department informed the Smoluks that it would require 650 square feet of the Smoluks' land, representing a strip of approximately six and one-half feet in width along the Calcon Hook Road frontage. As a result, the Smoluks' side yard would be reduced and their house located only two feet from the road's right of way. The Department thereafter appraised the property, and made an offer of $6,000.00 for the land to be taken.

On June 20, 1984, the Smoluks filed a petition for appointment of viewers alleging that the Department's activities had resulted in a de facto taking of their entire property on or about November 1982. On July 5, 1984, the Department filed a declaration of taking for the 650 square feet of Smoluks' property necessary for the project.*fn2 Each party filed preliminary objections to the

[ 100 Pa. Commw. Page 425]

    other's petition and the two actions were consolidated by the court of common pleas. After a hearing, the trial court found that the Department's activities had diminished the fair market value of Smoluks' property resulting in the inability of the Smoluks to sell their property. The court thus concluded that there had been a de facto taking of the entire property as of October 15, 1981. The ...


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