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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA (07/02/87)

decided: July 2, 1987.

IN RE: CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA, ACTING BY AND THROUGH THE DEPARTMENT OF GENERAL SERVICES OF THE PROPERTY OF BENART ASSOCIATES, A PENNA. LIMITED PARTNERSHIP; BLUE RIDGE REAL ESTATE COMPANY (A PENNA. CORP.); ET AL. IVAN M. POPKIN AND SUSAN A. POPKIN, APPELLANTS


Appeal from the Order of the Court of Common Pleas of Carbon County, in case of Ivan M. Popkin, et ux, et al. v. Commonwealth of Pennsylvania, No. 82 S 374.

COUNSEL

Jerry M. Gewirtz, with him, Allan B. Schneirov, Mesirov, Gelman, Jaffe, Cramer & Jamieson, for appellants.

David A. Fitzsimons, Assistant Counsel, with him, H. Warren Ragot and P. Alan Zulick, Assistant Counsels, and Anthony P. Krzywicki, Chief Counsel, for appellee.

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

Author: Narick

[ 107 Pa. Commw. Page 236]

Ivan Popkin and Susan Popkin, his wife (Popkins) appeal from an order of the Court of Common Pleas of Carbon County dismissing their preliminary objections to a declaration of taking filed by the Department of General Services (DGS). For the reasons set forth below, we affirm.

[ 107 Pa. Commw. Page 237]

On August 30, 1982 a declaration of taking was filed by the DGS as part of a regional condemnation undertaken by the DGS for the creation of the Lehigh Gorge State Park (Lehigh Gorge). Included in the acquisition is a parcel of land owned by the Popkins, and located in Kidder Township, Pennsylvania. The declaration of taking cited Section 2401.1 of The Administrative Code of 1929 (Code),*fn1 as the statutory authority for the taking, and also made reference to two resolutions made by the General State Authority which authorized the taking.*fn2

Although the relevant facts in this matter are not disputed, the Popkins filed preliminary objections on September 30, 1982 alleging: (1) Section 2401.1 of the Code, 71 P.S. § 631.1 did not confer authority upon the DGS to condemn Appellants' property; (2) the Wild and Scenic Rivers Act, 16 U.S.C. § 1271 et seq. (WSRA), is the controlling law, and the DGS in violation of the WSRA has failed to give the Popkins the right to use or occupy the condemned property during their lifetime; and (3) the DGS has condemned more land than is necessary and has otherwise acted arbitrarily and discriminatorily in determining which properties or what portions thereof are to be condemned for the development of the Lehigh Gorge.

The Popkins first argue that pursuant to Section 2401.1, Clause 2 (Clause 2) and Clause 4 (Clause 4) of the Code, the DGS is not authorized to condemn the

[ 107 Pa. Commw. Page 238]

Popkins' property for the purpose of acquiring land for Lehigh Gorge.*fn3 However, the Popkins' reliance on Clause 2 is misplaced. The Popkins incorrectly assert that Clause 2 and Clause 4 should be read together. However, Section 2401.1 is an enumeration of the specific powers of the DGS. ...


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