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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA (05/17/89)

decided: May 17, 1989.

IN RE CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, OF RIGHT OF WAY FOR LEGISLATIVE ROUTE 1021, SECTION 1B, A LIMITED ACCESS HIGHWAY, IN THE CITY OF PITTSBURGH. ESTATE OF JULIA F. ROCHEZ, DECEASED, BY EDWARD GOSLIN ET AL. APPEAL OF COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION


Appeal from Allegheny County, Common Pleas Court, Honorable Maurice Louik, Judge.

COUNSEL

Jeffrey L. Giltenboth, John L. Heaton, Asst. Counsel, Pittsburgh, for appellant.

Thomas J. Dempsey, Pittsburgh, for appellee.

Doyle and Colins, JJ., and Kalish, Senior Judge. Doyle, J., concurs and dissents.

Author: Kalish

[ 126 Pa. Commw. Page 61]

The Pennsylvania Department of Transportation (DOT) filed a declaration of taking to acquire a fee simple estate in fifty percent of the property of the Estate of Julia F. Rochez (condemnee), for the construction of a limited access highway. The condemnee filed a number of preliminary objections, including, inter alia, that the taking was excessive. In an order dated August 6, 1985, the trial court held that section 3 of the Act of December 7, 1979, P.L. 478, (Act of 1979-100), 71 P.S. § 513(e), violated Article III, Section 3 of the Pennsylvania Constitution because the title of the

[ 126 Pa. Commw. Page 62]

Act failed to give notice that its amendment to The Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 513(e)(1), changed the law concerning condemnation for highway rights-of-way to permit such condemnation in fee simple. The condemnee then filed a motion for an amended order of court on the basis that in its order of August 6, 1985, the trial court failed to provide for the revesting of title to the condemned area.

Whereupon, the trial court vacated its prior order and in an order dated August 30, 1985, again held that Act 1979-100 was deficient and void, and ordered the property revested in the condemnee pursuant to section 406 of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-406.*fn1 DOT appealed this order directly to the Pennsylvania Supreme Court.

Meanwhile, in a further clarification of its August 30, 1985 order, the trial court, on September 27, 1985, stated that its order was intended to be "dispositive of the case and did not require the court to address and dispose of the remaining preliminary objections which were therefore not ruled upon."

DOT then requested the Pennsylvania Supreme Court in addressing its appeal to vacate the September 27, 1985 order of the trial court on the ground that the trial court had no power to make an amendment while the appeal was pending in the Supreme Court. The Supreme Court disposed of the entire matter, ruling that Act 1979-100 was constitutional and remanded the case to the trial court to consider and decide all the remaining issues, including the question of the remaining preliminary objections. In Re: Department of Transportation, 511 Pa. 620, 515 A.2d 899 (1986).

Pursuant to the Supreme Court's mandate on remand, the trial court proceeded to consider and dispose of the remaining

[ 126 Pa. Commw. Page 63]

    issues by taking testimony. The evidence indicated that while DOT needed only twenty feet into the condemnee's building for its roadway, it nevertheless condemned the entire building so that the area could be used as a staging area for the contractors and by so doing, would lessen the cost of construction.

The condemnee contends that it was not necessary to take its entire building, and that if twenty feet of the building was removed and a new wall erected, the building as "cured" would still be functionable. The condemnee contends that to that extent, ...


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