Com., Dept. of Transp. v. Lawton

• Decision Date: 14 March 1980
• Citation: 50 Pa.Cmwlth. 144,412 A.2d 214
• Parties: COMMONWEALTH of Pennsylvania DEPARTMENT OF TRANSPORTATION, Appellant, v. J. Edward LAWTON, III et al., Appellees.
• Court: Pennsylvania Commonwealth Court

Page 214

412 A.2d 214

50 Pa.Cmwlth. 144

COMMONWEALTH of Pennsylvania DEPARTMENT OF TRANSPORTATION, Appellant, v. J. Edward LAWTON, III et al., Appellees.

Commonwealth Court of Pennsylvania.

Argued Feb. 8, 1980.

Decided March 14, 1980.

Marie Inyang, John T. Clary, Jr., Ward Williams, Sp. Asst. Atty. Gen., Dept. of Transp., Philadelphia, for appellant.

Murray S. Eckell, Nicholas J. Emper, Media, for appellees.

Before WILKINSON, MENCER and CRAIG, JJ.

OPINION

WILKINSON, Judge.

Alleging a "de facto" taking, the appellees commenced this litigation with a petition for the appointment of viewers filed pursuant to Section 502(e) of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-502(e). The Court of Common Pleas of Delaware County dismissed preliminary objections of the Commonwealth of Pennsylvania, Department of Transportation (Department) to the petition. The Department appeals to this Court.

Appellees own approximately 30 acres in Springfield Township. Located on their property are appellees' residence, a school building (rented out for a winter school), a swimming pool and camp buildings (at which the appellees used to run a summer camp and at which a tenant ran a summer camp in 1975, 1976, and 1977). Since 1959 the Department has proposed construction of legislative route 1010 (Blue Route), which is to be a six lane limited access route connecting the Pennsylvania Turnpike in Montgomery County with Interstate 95 in Delaware County. Within Delaware County there are ten "sections" of Blue Route that are presently planned, numbered south to north as Blue Route, A1 to Blue Route, C2. Appellees' property would fall in proposed section A3. Of the ten sections, only one section has been constructed (section B4) in the northern end of Delaware County. There have been acquisitions and condemnations in other sections. In October 1963 an "ultimate" right of way plan which included part of appellees' land was filed in the Delaware County Recorder of Deeds Office. An actual right of way plan for section A3 has neither been recorded nor approved, and the Department has not filed a Declaration of Taking to condemn appellees' property.

Averring that as a result of the Department's actions and of the publicity of the imminence of the formal condemnation of their land by the Department the appellees have been unable to obtain the fair market value of the property through sale or the fair rental value of the property and have consequently not paid the real estate taxes on the property for the years 1977 and 1978 and are threatened with the eventual loss of the property, the appellees filed on October 16, 1978 a petition for the appointment of viewers. The Department filed preliminary objections to the petition on the grounds that the Department never deprived the appellees of the beneficial use and enjoyment of the property and that the acts complained of are merely preliminary, incidental and foreseeable ones preparatory to a possible condemnation. After a hearing, the court of common pleas found that a de facto taking of appellees' land had occurred and dismissed the Department's preliminary objections.

The issues before us are (1) whether the lower court properly concluded that the averments of appellees' petition are legally sufficient to state a cause of action for compensable injury by reason of a de facto taking, and (2) whether the lower court erred in finding that the date of the de facto taking was October 16, 1978, the date on which appellees filed the petition for the appointment of viewers.

As this Court has recently stated:

"When confronted with a petition for appointment of viewers alleging a de facto taking to which a preliminary objection in the nature of a demurrer is filed, the lower court must first decide whether as a matter of law the averments of the petition, taken as true, are sufficient to state a cause of action of a de facto taking. If not, the preliminary objections must be sustained and the petition dismissed or the petitioner allowed to amend his pleading. If the averments, taken as true, might establish a de facto taking, the lower court must take evidence by deposition or otherwise so that a judicial determination might be made. If the averments on their face establish a de facto taking, then the preliminary objections must be dismissed."

Harborcreek Township v. Ring, --- Pa.Cmwlth. ---, 410 A.2d 917 (1980). It is not contested that an order dismissing preliminary objections to a petition for the appointment of viewers alleging a de facto taking is a final and appealable order.

In the instant case the court of common pleas found that the Department's activities relevant to appellees' claim included 19 years of public proclamations of the Blue Route, public statements of the imminence of formal condemnation of properties in its path, public announcements that just compensation would be paid for properties condemned, media announcements of actual condemnations and appraisal activity, and informing appellees that their property is needed for the construction of the Blue Route.

In order for a condemnee to prove that a de facto taking has occurred, he must show exceptional circumstances which have substantially deprived him of the use and enjoyment of his property. Perfection Plastics, Inc. Appeal, 28 Pa.Cmwlth. 396, 368 A.2d 917 (1977). It has been settled by our Supreme Court that the recording of plans like the "ultimate" plans in the instant case does not constitute a taking. See Commonwealth Appeal, 422 Pa. 72, 221 A.2d 289 (1966). Nor do the actions of an authority vested with eminent domain powers in generating publicity, holding public hearings, posting a map of the project near a landowner's property, and condemning other properties in the landowner's neighborhood constitute a de facto taking. Helms v. Chester Redevelopment Authority, 32 Pa.Cmwlth. 377, 379 A.2d 660 (1977). Further, the appellees here have not alleged the kinds of significant activity by Department agents as regards appellees' property that alone would constitute a de facto taking. See Petition of Cornell Industrial Electric, Inc., 19 Pa.Cmwlth. 599, 338 A.2d 752 (1975) (redevelopment authority's representatives told landowner that its property was going to be acquired and suggested that landowner should be prepared to relocate sometime before the acquisition; landowner's property was appraised); Commonwealth's Crosstown Expressway Appeal, 3 Pa.Cmwlth. 1, 281 A.2d 909 (1971) (Department gave notice of the imminence of condemnation to tenants and owners of properties, including the tenants and prospective tenants of the premises of petitioner, and urged...