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decided: January 7, 1988.


Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, of Fee Title Underlying Easements previously acquired for Legislative Route 67045, Section 9A, in the City of Philadelphia, No. 4038, July Term, 1984.


Lewis Kates, Kates & Mazzocone, for appellant.

William J. Cressler, Assistant Counsel, with him, Scott M. Olin, Assistant Counsel, Spencer A. Manthorpe, Chief Counsel, Henry G. Barr, General Counsel, for appellee.

Judges Craig, Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle. President Judge Crumlish did not participate in the decision in this case. Dissenting Opinion by Senior Judge Kalish.

Author: Doyle

[ 112 Pa. Commw. Page 369]

Sidney and Paulette Bernstein (Appellants) appeal from an order of the Court of Common Pleas of Philadelphia County, which sustained the Department of Transportation's (DOT's) preliminary objections to Appellants' petition for the appointment of a Board of View. We affirm.

This case is another of those arising out of the construction of the Vine Street Expressway (Expressway)

[ 112 Pa. Commw. Page 370]

    and involves the premises located at 245-247 North Sixteenth Street. In February of 1971, DOT filed a declaration of taking to "condemn an easement [interest] for highway purposes" in the property.*fn1 Subsequent to the filing of this declaration of taking, DOT tendered to Appellants estimated just compensation in the amount of $45,800. A Board of View was then convened to assess damages but prior to the viewers decision, the parties reached an agreement and DOT agreed to pay $7,500 in addition to the $45,800 in estimated just compensation. This agreement, of course, concerned the Appellants' easement interest only and not their underlying fee interest.

As originally designed, the Expressway would have utilized the property for a highway interchange. Due to community opposition and lack of funding, the construction of the highway was delayed for a long period of time. During this delay, the plans for the Expressway were "scaled down" and a new design called for the property to be used for construction of a multi-level parking garage adjacent to the actual roadway. In order to construct the garage, DOT entered into a joint use agreement with the Philadelphia Parking Authority (Authority) on January 17, 1984. Under the terms of this agreement, DOT agreed to acquire fee simple title to the property.*fn2

[ 112 Pa. Commw. Page 371]

In order to effectuate this agreement, DOT filed a second declaration of taking on July 25, 1984. As paragraph eight of this declaration of taking explained, "[t]he nature of the title hereby condemned is the fee title underlying the easements for highway purposes previously acquired by the Department." Appellants did not file preliminary objections to this declaration of taking, but instead, on September 9, 1984, filed a petition for the appointment of viewers under Section 502(a) of the Eminent Domain Code (Code).*fn3 In paragraph four of their petition, Appellants alleged that "[t]he Commonwealth of Pennsylvania acquired, appropriated and condemned 245-247 North 16th Street, Philadelphia, Pa., in fee simple or absolute title." In fact, DOT's declaration of taking, as already recited, did not condemn the entire fee interest, and DOT therefore filed preliminary objections to Appellants' petition requesting the common pleas court to strike the Appellants' petition. The crux of DOT's position was summarized in paragraph four of its preliminary objections where it stated "[t]he petition filed by Bernstein alleges a taking by the Commonwealth of a property interest far in excess of that actually acquired by the Commonwealth pursuant to a Declaration of Taking filed in Philadelphia County, at July Term, 1984, Number 4038."

[ 112 Pa. Commw. Page 372]

In response to DOT's preliminary objections, Appellants filed an answer on October 11, 1984, wherein they averred that:

(d) The purpose for which Premises had been condemned in First Condemnation [February 25, 1971] had been abandoned and Premises was not when the Declaration of Taking was filed by PennDOT to commence this action (hereafter 'Second Condemnation') [July 25, 1984] and is not now required for any transportation purposes within the compass of law or for any proper purpose for which PennDOT can condemn a fee or any lesser interest in Premises.

(e) Even assuming the purposes for which PennDOT instituted Second Condemnation to be a valid transportation purpose and therefore within its authority to institute condemnation proceedings, Bernstein was at the time Second Condemnation was commenced the fee simple owner of the premises, unencumbered by any easement in favor of PennDOT, the same having been abandoned.

(f) The purpose for which PennDOT commenced Second Condemnation was for parking purpses (sic), to wit, to have constructed a parking garage for use by the general public and not for any valid transportation purpose.

(g) The proposed parking garage which is to be constructed on premises is not necessary for and shall not be used by PennDOT for any purpose, including but not limited to ...

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