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SEVERINO CAPECE AND MARY CAPECE v. CITY PHILADELPHIA (01/24/89)

decided: January 24, 1989.

SEVERINO CAPECE AND MARY CAPECE, APPELLANTS
v.
CITY OF PHILADELPHIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County, in the case of Severino Capece and Mary Capece v. City of Philadelphia, No. 651 February Term, 1986.

COUNSEL

Kevin Weinstein, Master, Donsky, Soffian & Allen, for appellants.

Laureto A. Farinas, Assistant City Solicitor, for appellee.

Judge Smith, and Senior Judges Kalish and Narick, sitting as a panel of three. Opinion by Senior Judge Narick. Judge MacPhail did not participate in the decision in this case.

Author: Narick

[ 123 Pa. Commw. Page 87]

Severino Capece and Mary Capece (Capeces) appeal from a decision of the Court of Common Pleas of Philadelphia County granting the Amended Preliminary Objections of the City of Philadelphia (City) and dismissing the Capeces' Petition for Appointment of a Board of View pursuant to the Pennsylvania Eminent Domain Code (Code).*fn1

[ 123 Pa. Commw. Page 88]

The Capeces filed a Petition for Appointment of a Board of View alleging that the City had effected a de facto condemnation of their property.*fn2 The Capeces allege that during the summer of 1985 the City commenced work on a water main, sewer replacement and road widening project on a roadway adjoining their property, and that in the course of the project the roadway was raised, thus depreciating the market value of the Capece property. The trial court granted the petition and appointed a Board of View. The City filed preliminary objections, to which the Capeces filed a response. The City then filed amended preliminary objections, and the Capeces filed a response. The trial court entered an order directing the taking of depositions. The City requested that the order be vacated and that the matter proceed to oral argument. A hearing occurred off the record at sidebar. Although some photographs were presented to the trial court, both parties concede that an evidentiary proceeding did not take place. Counsel for both parties submitted supplemental memoranda. The trial court granted the City's amended preliminary objections and dismissed the Capeces' petition, holding that

     the averment of the devaluation of the market value of the subject as a result of raising Summit Avenue vis a vis Plaintiff's property by six inches*fn3 taken as true does not constitute 'exceptional circumstances' which have substantially deprived the property owner(s) of the beneficial use and enjoyment of the property.

[ 123 Pa. Commw. Page 89]

Trial court's opinion at 4-5. This appeal followed.

The issue presented is whether an allegation that the market value of a parcel of property was depreciated due to a change of grade of an abutting street states a cause of action under the Code, absent an allegation of either interference with access or injury to surface support. Our scope of review is limited to determining whether the trial court committed an error of law or abused ...


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