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Gerg v. Township of Fox

Commonwealth Court of Pennsylvania

January 6, 2015

William Gerg and Jerome Gerg, Jr.
v.
Township of Fox, Appellant

Argued November 10, 2014

Appealed from No. 2010-1015. Common Pleas Court of the County of Elk. Fornelli, Senior Judge.

Damion J. Bevacqua, Ridgway, for appellant.

Thomas G. Wagner, St. Marys, for appellees.

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge.

OPINION

Page 850

BONNIE BRIGANCE LEADBETTER, Judge

The Township of Fox appeals from an order of the Court of Common Pleas of the 59th Judicial District (Elk County Branch) determining that the Township effected a de facto condemnation of the Gergs' property for a public right-of-way easement consisting of 6507.75 square feet. We consider here the effect of an order entered pursuant to Sections 502(c)(2) and (3) of the Eminent Domain Code (Code),[1] which provide as follows:

(c) Condemnation where no declaration of taking has been filed.--
. . . .
(2) The court shall determine whether a condemnation has occurred, and, if the court determines that a condemnation has occurred, the court shall determine the condemnation date and the extent and nature of any property interest condemned. [no prior version in former Code]
(3) The court shall enter an order specifying any property interest which has been condemned and the date of the condemnation. [no prior version in former Code]

For the reasons that follow, we conclude that common pleas' order is interlocutory and, accordingly, quash the Township's appeal.

The background of this matter is as follows. The Gergs' farm property is bisected by a public road known as Hogback Road. In July and August 2008, the Township engaged in construction activities on and around that road for purposes of reconstruction, widening and paving. In October 2009, the Gergs filed a civil complaint against the Township seeking monetary damages of approximately $40,000, and alleged that the Township's removal of topsoil and dirt was either willful or ...


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