Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

COMMONWEALTH PENNSYLVANIA v. MARIO MARTINELLI AND MARY MARTINELLI (09/07/89)

decided: September 7, 1989.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT,
v.
MARIO MARTINELLI AND MARY MARTINELLI, APPELLEES. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT, V. THOMAS B. MCCABE AND ELIZABETH MCCABE, APPELLEES. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT, V. GASPER MAGLIENTE AND DORAH MAGLIENTE, APPELLEES. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT, V. KATHERINE M. BURRUANO TONER, APPELLEE. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT, V. ANNUNZIO CALVARESE AND ROSE CALVARESE, APPELLEES



Appeal from Common Pleas Court, Montgomery County, Honorable Anita A. Brody, Judge.

COUNSEL

Carl Vaccaro, Asst. Counsel, Philadelphia, Spencer A. Manthorpe, Asst. Chief Counsel, John L. Heaton, Chief Counsel, Harrisburg, for appellant.

James J. Oliver, Cheri Andrews, Wright, Manning, Kinkead & Oliver, Norristown, for appellees.

Doyle and Palladino, JJ., and Narick, Senior Judge.

Author: Palladino

[ 128 Pa. Commw. Page 450]

Pennsylvania Department of Transportation (DOT) appeals from an order of the Court of Common Pleas of Montgomery County, dismissing DOT's preliminary objections to the amended petitions for appointment of a Board of View filed by Mario and Mary Martinelli, Thomas and Elizabeth McCabe, Katherine Burruano Toner, Annunzio and Rose Calvarese, and Gasper and Dorah Magliente (Petitioners).*fn1

Eminent domain proceedings provide the backdrop for this appeal which requires us to determine whether the trial judge correctly utilized collateral estoppel as authority to dismiss DOT's preliminary objections. A recitation of the facts is necessary to understand the positions of the parties on this appeal.

On August 2, 1985, each of the Petitioners filed a petition for appointment of a Board of View, seeking to recover damages for what they contended was a de facto taking of

[ 128 Pa. Commw. Page 451]

    their property by the Commonwealth. Specifically, it was alleged that DOT, in a road widening project of DeKalb Pike (Route 202) on April 22, 1974, affected a de facto taking of a 13 foot wide strip of Petitioners' properties along Route 202. DOT filed preliminary objections, asserting that the petitions lacked specificity, that no taking had occurred, and that the present action was barred by the statute of limitations. DOT's objection as to the lack of specificity was sustained. Petitioners then filed separate but identical amended petitions. Petitioners, in their amended petitions, alleged that a Declaration of Taking was never filed, that no compensation had ever been received by Petitioners or their predecessors in title, and that Petitioners first received notice of DOT's intention to condemn a portion of their properties on June 4, 1973.

DOT filed preliminary objections to the amended petitions, once again contending that the statute of limitations had run and that the land in question was not subject to a taking in 1974, but had in fact become Commonwealth property in 1948.*fn2 DOT supported its contention that the land had become Commonwealth property in 1948 by alleging in the preliminary objections that a highway plan had been filed with the Recorder of Deeds of Montgomery County in 1948.

The Montgomery County trial judge conducted an evidentiary hearing in order to rule upon the factual allegations raised in the amended petitions and DOT's preliminary objections, and to determine when and whether a taking had occurred. At the hearing DOT presented testimony and documents to support its contention that the property in question had been condemned by the state in 1948 and that the present ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.