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CONDEMNATION BY ERIE MUNICIPAL AIRPORT AUTHORITY CERTAIN PROPERTIES MILLCREEK TOWNSHIP v. LOUIS J. AGOSTINI (07/03/89)

decided: July 3, 1989.

IN RE CONDEMNATION BY THE ERIE MUNICIPAL AIRPORT AUTHORITY OF CERTAIN PROPERTIES IN MILLCREEK TOWNSHIP, ERIE COUNTY, COMMONWEALTH OF PENNSYLVANIA. ERIE MUNICIPAL AIRPORT AUTHORITY, APPELLANT,
v.
LOUIS J. AGOSTINI, NORMAN J. CUTRI AND RIVIERA ESTATES, APPELLEES (TWO CASES)



Appeal from Common Pleas Court, Erie County, Honorable Jess. S. Jiuliante, Judge.

COUNSEL

Wallace J. Knox, Knox, McLaughlin, Gornall & Sennett, P.C., Erie, for appellant.

David W. Murphy, Pittsburgh, for appellees.

Colins and McGinley, JJ., and Barbieri, Senior Judge.

Author: Barbieri

[ 127 Pa. Commw. Page 362]

Erie Municipal Airport Authority (Authority) appeals the orders of the Erie County Court of Common Pleas dated November 10, 1988 and December 7, 1988*fn1 which respectively dismissed the Authority's preliminary objections to the petition for appointment of viewers (petition) filed by Louis J. Agostini, Norman J. Cutri, and Riviera Estates (Appellees)*fn2 and sustained Appellees' preliminary objections to the Authority's declaration of taking. Issues presented for review are whether the trial court applied the appropriate statute of limitations in determining that Appellees' petition was timely filed; whether the evidence was sufficient to establish a de facto taking; and whether Appellees' preliminary objections to the Authority's declaration of taking were properly sustained. The trial court's rulings are affirmed.

[ 127 Pa. Commw. Page 363]

In 1972 or 1973, Appellees purchased property upon which they constructed a mobile home park. The Erie International Airport (airport), which is owned by the Authority, had been operating for several years prior to Appellees' acquisition of the subject property and had been updating the runway at issue since 1968. The final alteration to this runway, a 500-foot extension, became operable on November 13, 1978 and placed the end of the runway less than 2000 feet from Appellees' property. This runway accommodates large commercial jet traffic and 90% of all other aircraft traffic.

Appellees initiated the matter docketed at No. 2839 C.D. 1988 on November 23, 1987 by filing a petition in the trial court for appointment of viewers, alleging that the Authority had effected a de facto taking of their property. Appellees claimed that aircraft arriving at and departing from the airport's primary runway denied them the quiet use and enjoyment of their property. The Authority filed preliminary objections raising the issues of whether there was a de facto taking and whether Appellees' petition was timely filed. After a seven-day evidentiary hearing, the trial court determined that Appellees' petition was timely filed and that the Authority effected a de facto taking of Appellees' property on November 13, 1978, the date on which the 500-foot runway extension became operable.

On October 3, 1988, the Authority initiated the action docketed at No. 3023 C.D. 1988 by filing a declaration of taking in the trial court, seeking an avigational easement over Appellees' property. Appellees filed preliminary objections asserting that the Authority could not take de jure what it had previously taken de facto. By order dated December 7, 1988, the trial court sustained Appellees' preliminary objections, whereupon the Authority appealed to this Court for review of both trial court rulings.*fn3

[ 127 Pa. Commw. Page 364]

The Authority asserts that the trial court abused its discretion and committed legal error in not finding Appellees' petition barred by the six year limitations period of Section 5527 of the Judicial Code (Code), 42 Pa.C.S. § 5527,*fn4 since Appellees' property was injured and not taken.*fn5 Appellees, on the other hand, contend that the trial court properly applied the twenty-one year limitations period of Section 5530 of the Code, 42 Pa.C.S. § 5530,*fn6 as their property was taken without just compensation. The issue of which limitations period ...


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