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COMMONWEALTH PENNSYLVANIA v. GENE F. MYERS AND GRACE B. MYERS (03/05/87)

decided: March 5, 1987.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT
v.
GENE F. MYERS AND GRACE B. MYERS, HIS WIFE, APPELLEES



Appeal from the Order of the Court of Common Pleas of Adams County in the case of Gene F. Myers and Grace B. Myers, his wife v. Commonwealth of Pennsylvania, Department of Transportation, No. 83-S-561.

COUNSEL

Lawrence R. Wieder, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Henry G. Barr, General Counsel, for appellant.

Victor A. Neubaum, for appellees.

Judges Barry and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish. Judge Palladino concurs in the result only.

Author: Kalish

[ 104 Pa. Commw. Page 357]

Appellant, Department of Transportation (DOT) seeks review of an order of the Court of Common Pleas of Adams County which dismissed the preliminary objections of appellant and found that the property of appellees has been subject to a de facto taking. We affirm the trial court.

Since factual issues were involved, the trial court held an evidentiary hearing in the form of depositions and interrogatories to determine whether there had in fact been a taking. The trial court found that on August 2, 1976, appellees purchased a two-story frame house with a basement, located at the intersection of Pennsylvania Route 234 and Legislative Route 01042. Access to

[ 104 Pa. Commw. Page 358]

    the basement could be gained only from the outside entrance located along Route 01042. At the time of the acquisition, the basement contained eight inches of water and it was necessary for appellees to pump the basement to keep it dry. They did this until 1978. In 1978 DOT installed drainage pipes with catch basins along the roadside so that the basement remained dry.

In the summer of 1981, DOT engaged in the widening of Route 01042. Thereafter, following a heavy downpour of rain, appellees' basement flooded. As a result, the home remained damp, the paneling buckled, and there were unpleasant odors. On July 1, 1982, appellees moved because of these conditions. They sold their home, at auction, for $5,900.

On September 13, 1983, appellees filed a petition for the appointment of viewers pursuant to section 502(e) of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. ยง 1-502(e), in which they alleged that the widening of Route 01042 went beyond its right-of-way, that DOT took some of appellees' land in the process, and cut an embankment causing surface water to flood their basement, making their house uninhabitable.

The trial court found that Route 01042 consisted of a thirty-three foot right-of-way and that the grading work did not extend beyond this right-of-way, so that there was no physical taking of any property belonging to appellees. This finding is based on substantial evidence in the record. However, the court did find that there was a de facto taking of appellees' property.

DOT contends that there could be no taking because the trial court did not define the exact nature and extent of the taking and because DOT did not enter upon appellees' property. Moreover, the evidence did not show a substantial ...


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