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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA DEPARTMENT TRANSPORTATION RIGHT WAY FOR LEGISLATIVE ROUTE 146 (09/22/88)

decided: September 22, 1988.

IN RE: CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OF RIGHT OF WAY FOR LEGISLATIVE ROUTE 146, SECTION 11S, IN THE TOWNSHIP OF EXETER. OWNERS OF PROPERTY: NORDHOY AND RAMSEY. FRODE NORDHOY AND GREG RAMSEY, CO-PARTNERS, APPELLANTS


Appeal from the Order of the Court of Common Pleas of Berks County, in the case of In Re: Condemnation by the Commonwealth of Pennsylvania Department of Transportation of Right of Way for Legislative Route 146, Section 11S, in the Township of Exeter, No. 215 July 1986.

COUNSEL

Alan I. Baskin, Baskin, Leisawitz, Heller & Abramowitch, for appellant.

Donna J. Campbell, Assistant Counsel, with her, John L. Heaton, Chief Counsel, for appellee.

Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Smith.

Author: Smith

[ 119 Pa. Commw. Page 621]

Appellants Frode Nordhoy and Greg Ramsey (Condemnees) appeal from a decision of the Court of Common Pleas of Berks County which dismissed Condemnees' preliminary objections to a declaration of taking filed by Commonwealth of Pennsylvania, Department of Transportation (DOT), under the Eminent Domain Code (Code)*fn1 and denied Condemnees' motion for sanctions against DOT for failure to answer interrogatories. Issues presented for review pertain to whether the trial judge abused his discretion, committed an error of law, or exhibited bias in favor of DOT in his rulings. The trial court is affirmed.

[ 119 Pa. Commw. Page 622]

Condemnees own real property along Legislative Route 146, Section 11S in Exeter Township, Berks County, Pennsylvania. DOT filed a declaration of taking on July 16, 1986 pursuant to authorization of plans by the Secretary of Transportation for a local highway reconstruction project. Condemnees' property was one of three affected by the project. Preliminary objections to the declaration of taking were timely filed by Condemnees and written interrogatories served on DOT on or about October 17, 1986. By letter to Condemnees dated December 9, 1986, DOT refused to answer the interrogatories contending that they were improper under the Code and irrelevant to the preliminary objections. On January 14, 1987, Condemnees filed a petition for sanctions seeking costs and a compliance order to enforce their discovery request. DOT thereafter moved for an expedited hearing on Condemnees' preliminary objections. By order dated February 5, 1987, the newly assigned trial judge set February 20, 1987 for hearing on the preliminary objections and petition for sanctions. The Court, at hearing, found that the interrogatories were oriented to the issue of just compensation and concluded that DOT should ultimately answer but that they were irrelevant to a determination of the preliminary objections under Section 406 of the Code, 26 P.S. ยง 1-406. The Court proceeded to hear the preliminary objections and concluded that they either exceeded the scope permitted under Section 406 or were not substantiated by the evidence. Hence, this appeal.

This Court's scope of review is to determine whether the trial court abused its discretion or committed an error of law or whether the findings of fact are supported by competent evidence.*fn2

[ 119 Pa. Commw. Page 623]

The record indicates that the trial court reviewed each of Condemnees' interrogatories to determine whether the information sought was relevant or critical to the issues raised in the Condemnees' preliminary objections. Rulings were made as well regarding whether DOT should answer the interrogatories at a subsequent stage of the proceedings.*fn3

Condemnees initially contend that the trial judge abused his discretion by not enforcing Condemnees' motion for sanctions. Sanctions may be imposed under Pa. R.C.P. ...


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