Appeal from the Order of the Court of Common Pleas of Lancaster County in the case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, of Right-Of-Way for Legislative Route 442, Section 129, in the Township of Manheim, No. 1944 of 1986.
Allan R. Crider, with him, William E. Haggerty, Morgan, Hallgren, Crosswell & Kane, P.C., for appellants.
William J. Cressler, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Morey Myers, General Counsel, for appellee.
Judges MacPhail and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge MacPhail.
[ 113 Pa. Commw. Page 403]
John J. and Madolyn C. Corcoran (Appellants) appeal from the order of the Court of Common Pleas of Lancaster County dismissing their preliminary objections to the Pennsylvania Department of Transportation's (DOT) Declaration of Taking. We affirm.
Appellants own property at 8 West Roseville Road in Manheim Township, Lancaster County, Pennsylvania, bounded on the east by Legislative Route 442 (L.R. 442), also known as Lititz Pike, and bounded on the north by Roseville Road. L.R. 442 is a State highway,
[ 113 Pa. Commw. Page 404]
while Roseville Road is a township road. DOT filed a Declaration of Taking for portions of this property bordering each roadway in order to place continuous curbing around the intersection, for the purpose of making it safer. Appellants object only to the taking of property bordering Roseville Road, and not to the taking of property bordering L.R. 442.
Under Section 402(b)(2) of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-402(b)(2), a declaration of taking must contain "[a] specific reference to the statute, article and section thereof under which the condemnation is authorized." DOT, in its Declaration of Taking, has cited Section 2003(e)(1) of The Administrative Code of 1929 (Code), Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 513(e)(1), as its authority for the condemnation, which in pertinent part provides that DOT shall have the power and its duty shall be:
To acquire, by gift, purchase, condemnation or otherwise, land in fee simple or such lesser estate or interest as it shall determine, in the name of the Commonwealth, for all transportation purposes, including marking, rebuilding, relocating, widening, reconstructing, repairing and maintaining State designated highways and other transportation facilities, and to erect on the land thus acquired such structures and facilities, including garages, storage sheds or other buildings, as shall be required for transportation purposes.
Appellants aver that Section 2003(e)(1) of the Code only gives DOT authority to take property to benefit "State designated highways" and that the taking of the property bordering Roseville Road is not authorized by that ...