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

COMMONWEALTH COURT OF PENNSYLVANIA


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 trial court's findings were

[ 124 Pa. Commw. Page 161]

    incomplete, arbitrary, and against the weight and sufficiency of the evidence. To the contrary, the trial court clearly considered the evidence presented by both parties and resolved evidentiary conflicts against Iles in reaching a determination consistent with the expert and lay testimony of Appellees' witnesses, Arthur R. Yotter, Jr. and Robert L. Casner, respectively.

Yotter performed a seismograph analysis*fn4 of vehicular vibrations generated by traffic travelling through the intersection adjacent to Iles' premises. He testified on direct examination that only the heaviest vehicles provided any particle velocity*fn5 reading whatsoever; that .047 was the highest particle velocity reading obtained; that a reading below 2.0 is considered safe; and that structural damage to a residence as a result of traffic conditions here is extremely unlikely. N.T., pp. 122-123, 126-128. On cross-examination, Yotter testified that he conducted this vibration study to provide the highest possible particle velocity readings and that the vehicular vibrations in question could not have a cumulative effect so as to cause structural damage to a residence over a period of time. N.T., pp. 140-141.

Casner, on the other hand, testified that he leased a portion of the subject premises from Iles' predecessor-in-interest prior to the actions undertaken by Appellees. He further testified that some of the structural damage to the subject premises, which Iles attributes to increased traffic and concomitant vehicular vibrations, existed during the period of his tenancy. N.T., pp. 145-148.

[ 124 Pa. Commw. Page 162]

To establish occurrence of a de facto taking, Iles was required to demonstrate the existence of exceptional circumstances which substantially deprived her of the use and enjoyment of her property; that such substantial deprivation was caused by Appellees' actions; and that the damage to her premises was the immediate, necessary and unavoidable consequence of Appellees' actions. Department of Transportation v. Steppler, 114 Pa. Commonwealth Ct. 300, 542 A.2d 175 (1988). Moreover, resolution of evidentiary conflicts, issues of credibility, and findings of fact in eminent domain proceedings are for the trial court. R. & S. Millwork, Inc. v. Department of Transportation, 42 Pa. Commonwealth Ct. 624, 401 A.2d 587 (1979). The record here establishes that Iles continues to reside in her premises and to operate a beauty salon therein. Thus, Iles has not been substantially deprived of the residential or business use of her property.

The testimony upon which the trial court based its determination clearly constitutes competent evidence to support the trial court's finding that Iles failed to establish a causal nexus between the structural damage to her residence and the vehicular vibrations alleged to have resulted from Appellees' actions.*fn6 No error of law having

[ 124 Pa. Commw. Page 163]

    been committed, the decision of the trial court is affirmed.

Order

And Now, this 13th day of March, 1989, the decision of the Court of Common Pleas of Montour County is affirmed.

Judge MacPhail did not participate in the decision in this case.

Disposition

Affirmed.


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