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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA DEPARTMENT TRANSPORTATION RIGHT WAY v. ROY A. FACKLER AND CYNTHIA FACKLER (09/18/86)

decided: September 18, 1986.

IN RE: CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OF RIGHT OF WAY, FOR LEGISLATIVE ROUTE 153, SECTION B-20 R/W, IN THE TOWNSHIP OF MONTGOMERY. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT
v.
ROY A. FACKLER AND CYNTHIA FACKLER, HIS WIFE, APPELLEES



Appeal from the Order of the Court of Common Pleas of Montgomery County, in case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, of Right of Way for Legislative Route 153, Section B-20 R/W, in the Township of Montgomery -- Ray A. Fackler and Cynthia Fackler, his wife v. Commonwealth of Pennsylvania, Department of Transportation, No. 82-04973.

COUNSEL

Scott M. Olin, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.

C. Stephens Vondercrone, Jr., Pearlstine, Salkin, Hardiman and Robinson, for appellees.

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

Author: Palladino

[ 100 Pa. Commw. Page 548]

This is an appeal by the Pennsylvania Department of Transportation (DOT) from an order of the Court of Common Pleas of Montgomery County (trial court) which sustained an objection to, and modified a legal conclusion in, a report by a Board of View and dismissed other objections to the report.

On April 2, 1982 DOT filed a Declaration of Taking of 6,864 square feet of real property owned by Roy and Cynthia Fackler (Condemnees) and located in Montgomery County. The property was being used as an automobile service station. Condemnees filed preliminary objections to the Declaration of Taking asserting that DOT had abused its discretion in condemning the property or, in the alternative, that another condemnation plan was available which would not have put Condemnees out of business. Condemnees' preliminary objections were dismissed by the trial court.*fn1

On May 10, 1983, Condemnees filed a Petition for the Appointment of a Board of View (viewers). The viewers were appointed, and evidentiary hearings were held on September 9, 1983 and October 14, 1983. The viewers filed their report on February 24, 1984 awarding damages in the amount of $156,500 to Condemnees and making extensive findings of fact.*fn2 Both DOT and

[ 100 Pa. Commw. Page 549]

Condemnees appealed the award of damages and objected to specific findings of the viewers. On January 17, 1985, after receiving briefs and hearing oral argument, the trial court, based upon the evidence presented to the viewers, modified one of the factual findings of the viewers relating to the enforceability of the local zoning ordinance against the property, and dismissed all other objections.

DOT now appeals from the order of the trial court asserting that the trial court committed an error of law by not modifying the findings of the viewers and by refusing to remand the case to the viewers to redetermine the value of the property in a manner consistent with the trial court's modifications. Specifically, DOT asserts that the trial court erred in not modifying the following findings of the viewers:

1. 'The Board [of View] finds that it lacks sufficient evidence to make a determination that the remainder of the Condemnee's property as shown on the plan filed with the Declaration of Taking, was deliberately not condemned by [DOT].' (Viewer's finding number 16); and

2. 'The Board [of View] finds that it lacks jurisdiction to rule on whether or not Condemnees are in violation of the order dated March 28, 1969, of the Zoning Hearing Board of Montgomery Township.' (Viewer's finding number 14).

Additionally, DOT contends that the trial court erred in not striking specific factual findings of the viewers relating to the zoning classification of the property, the value of Condemnees' business, and the compensability of a loss of access to Condemnees' property. Finally, DOT contends that the trial court erred in refusing to order that the testimony presented by Condemnees' valuation expert to the viewers be stricken.

[ 100 Pa. Commw. Page 550]

Condemnees argue that a remand to the viewers is not necessary, appropriate or required by the law because the issues which DOT raises are going to be relitigated in the trial de novo, at which the viewers' findings and conclusions will be inadmissible. Therefore, to remand the case to the viewers at this juncture merely serves to delay the final resolution of the case. We agree with the argument advanced by Condemnees and conclude, for the reasons that follow, that a remand to the viewers would not be in accordance with the law. Section 517 of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. ยง 1-517, provides:

All objections, other than to the amount of the award, raised by the appeal shall be determined by the court preliminarily. The court may confirm, modify, change the report or refer it back to the same or other viewers. A decree confirming, modifying or changing the report shall constitute a final order. . . .

In the case of Hershey v. Exxon, 20 Pa. Commonwealth Ct. 537, 342 A.2d 497 (1975), this Court held that Section 517 of the Code grants broad discretionary authority to the courts of common pleas with respect to decisions to remand. Id. at 544, 342 A.2d at 501. In Hershey, we concluded that the trial court's refusal to remand the case to the viewers caused no prejudice to the lessee/condemnee's interest because the condemnee would ...


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