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CONDEMNATION PROPERTY LOCATED AT 20 WEST MAHONING STREET BOROUGH DANVILLE v. COMMONWEALTH PENNSYLVANIA (03/13/89)

decided: March 13, 1989.

CONDEMNATION OF PROPERTY LOCATED AT 20 WEST MAHONING STREET IN THE BOROUGH OF DANVILLE, OWNED BY RUTH ILES, BY THE COMMONWEALTH OF PENNSYLVANIA AND THE BOROUGH OF DANVILLE, CONDEMNORS. RUTH ILES, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montour County, in the case of Condemnation of Property located at 20 West Mahoning Street located in the Borough of Danville, owned by Ruth Iles, by the Commonwealth of Pennsylvania and the Borough of Danville v. Commonwealth of Pennsylvania, Department of Transportation, No. 492-1981.

COUNSEL

Robert A. Schwartz, with him, John A. Mihalik, Hummel, James & Mihalik, for appellant.

Daniel L. Sullivan, Shearer, Mette, Evans & Woodside, for appellee, Borough of Danville.

William J. Cressler, Assistant Counsel, for appellee, Department of Transportation.

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

Author: Smith

[ 124 Pa. Commw. Page 159]

Appellant Ruth Iles (Iles) appeals from the order of the Court of Common Pleas of Montour County which sustained preliminary objections raised by Appellees Borough of Danville (Borough) and the Pennsylvania Department of Transportation (DOT) to Iles' petition for appointment of viewers pursuant to Section 502(e) of the

[ 124 Pa. Commw. Page 160]

Eminent Domain Code.*fn1 The sole issue presented for review is whether the trial court erred in finding that Iles failed to establish a de facto taking.

Iles, a Borough property owner, petitioned the trial court for appointment of viewers, seeking just compensation for damages allegedly caused by Appellees' actions. Iles contended that subsurface vehicular vibrations generated by a substantial increase in traffic travelling through the intersection adjacent to her premises*fn2 caused irreparable structural damage sufficient to render her premises uninhabitable. Iles further contended that the substantial increase in traffic resulted from Appellees' road construction activities and that defective road surface grading by the Borough resulted in formation of a bump in the subject intersection which enhanced the vibrations generated by vehicles travelling through the intersection.

Preliminary objections to Iles' petition were filed by DOT and adopted by the Borough, alleging non-occurrence of a de facto taking. The trial court, after evidentiary hearing, found that Iles failed to establish that Appellees' actions caused exceptional circumstances sufficient to constitute a de facto taking, and accordingly, sustained Appellees' preliminary objections. Hence, this appeal.*fn3

Iles contends that the trial court failed to comprehend the evidence and that the ...


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