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SUSAN TUSHAK v. BOROUGH CALIFORNIA (06/22/88)

decided: June 22, 1988.

SUSAN TUSHAK, APPELLANT
v.
BOROUGH OF CALIFORNIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Washington County in the case of Susan Tushak v. Borough of California, No. 4665 of 1986.

COUNSEL

Jack H. France, for appellant.

D. Keith Melenyzer, for appellee.

Judges Barry and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 117 Pa. Commw. Page 204]

Susan Tushak (appellant) appeals an order of the Court of Common Pleas of Washington County which sustained the preliminary objections of the Borough of California (Borough) and dismissed the appellant's petition for an appointment of a Board of View. We affirm.

The appellant owns property located at 1005 Meadow Street in California. On this property is situated a driveway leading to a detached garage. At the juncture of the road and driveway is a drainage ditch. The appellant filed a petition, pursuant to Section 502(e) of the Eminent Domain Code (Code),*fn1 alleging that the Borough had enlarged and altered this drainage ditch which caused a de facto taking of her property. The appellant made service on the Borough on September 29, 1986. Exactly 100 days later, the Borough filed preliminary objections. The appellant moved to have these preliminary

[ 117 Pa. Commw. Page 205]

    objections dismissed as untimely. The trial court denied this motion. After an evidentiary hearing the trial court sustained the preliminary objections and dismissed the petition for an appointment of a Board of View. The trial court based its decision on the following factual findings:

1) The Plaintiff, property owner, acquired the subject premises in 1957, and the garage and drainage ditch in question have been in place since that time.

2) The only activities by the Borough have been periodic maintenance and cleaning of the ditch by hand, using shovels.

3) The Plaintiff alleged that such activity by the Borough in December of 1985, so widened and altered the contour of the ditch as to prevent her access to a garage on her premises.

4) The Court finds that the activities of the Defendant/Borough did not substantially alter or change the depth or contour of the ditch as a result of that particular ...


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