Condemnation of Premises 320 Crestview Circle, Nether Providence Tp., Delaware County, by Pennsylvania Dept. of Transp. for Highway Purposes, In re

• Citation: 68 Pa.Cmwlth. 506,449 A.2d 820
• Parties: In re CONDEMNATION OF PREMISES 320 CRESTVIEW CIRCLE, NETHER PROVIDENCE TOWNSHIP, DELAWARE COUNTY, Pennsylvania, By the PENNSYLVANIA DEPARTMENT OF TRANSPORTATION FOR HIGHWAY PURPOSES. Appeal of Richard W. MERRICK and Hannah F. Merrick, now deceased.
• Decision Date: 27 August 1982
• Court: Commonwealth Court of Pennsylvania

Page 820

449 A.2d 820

68 Pa.Cmwlth. 506

In re CONDEMNATION OF PREMISES 320 CRESTVIEW CIRCLE, NETHER

PROVIDENCE TOWNSHIP, DELAWARE COUNTY,

Pennsylvania, By the PENNSYLVANIA

DEPARTMENT OF TRANSPORTATION

FOR HIGHWAY PURPOSES.

Appeal of Richard W. MERRICK and Hannah F. Merrick, now deceased.

Commonwealth Court of Pennsylvania.

Argued June 10, 1982.

Decided Aug. 27, 1982.

[68 Pa.Cmwlth. 507] C. Norwood Wherry, Media, for appellant.

Reginald H. Holder, Dept. of Transp., Philadelphia, for appellee.

Before BLATT, WILLIAMS and CRAIG, JJ.

OPINION

BLATT, Judge.

This appeal arises from a petition filed by the petitioners, Richard W. and Hannah F. Merrick, requesting appointment of a jury of view, pursuant to Section 502(e) of the Eminent Domain Code (Code), ¹ because of an alleged de facto taking of their property. On June 26, 1978 a jury of view was appointed, and on November 24, 1978 the Commonwealth filed preliminary objections in the nature of a demurrer, asserting that there had been no taking, to which the petitioners filed an answer three days later. Following two evidentiary hearings, the Court of Common Pleas of Delaware County sustained the preliminary objections, dismissed the petition and discharged the jury of view. This appeal followed.

By letter of February 10, 1967, the Pennsylvania Department of Transportation (DOT) had informed the petitioners that DOT employees or contractors would be entering upon the petitioners' property, a single-family residence on Crestview Circle, Wallingford, to perform tests and surveys in connection with the planned construction of the Delaware County Mid-County Expressway, known as the Blue Route. In August, 1968 the petitioners purchased property in Cape May County, New Jersey, contracted to have a home built there, and moved to that residence in May, 1969. On May 21, 1969, in response to an inquiry from the petitioners, DOT advised them that the proposed Blue Route would require a total taking of the Crestview Circle property and that an offer would be forthcoming in a month to six weeks' time. By letter of June 20, 1969, DOT offered the petitioners $42,500.00 and indicated that possession would be required by October 1, 1969. The petitioners were next contacted by DOT by letter of November 26, 1969 in which they were notified that acquisition of their property had been deferred and that the previous offer was withdrawn unless it should later be reinstated in writing. In December, 1969 the petitioners began renting the Crestview Circle property and have continued renting it from that time.

Our scope of review in a case where the trial court has sustained preliminary objections to a petition for appointment of viewers is limited to determining whether or not the findings are supported by competent evidence or an error of law has been committed. Petition of Ramsey, 31 Pa.Commonwealth Ct. 182, 375 A.2d 886 (1977).

The petitioners contest the preliminary objections filed by DOT, and although the precise nature of their objection is not entirely clear, their argument would seem to be that DOT's preliminary objections are tainted by being in the nature of a demurrer and untimely filed. It is well-settled, however, that:

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, 48 Pa.Commonwealth Ct. 542, 544, 410 A.2d 917, 918 (1980). DOT, therefore, employed the appropriate form of pleading to contest the appointment of viewers, and the court held two evidentiary hearings before reaching its decision to sustain the objections. In addition, Section 504 of the Code, 26 P.S. § 1-504, requires that such preliminary objections must be filed within twenty days after receipt of notice of the appointment of viewers. A review of the record reveals that the June 26, 1978 order appointing the viewers was filed on June 27, 1978 but there is no evidence as to when DOT received notification of the appointment. However, even if DOT was notified promptly, in which event, its November 26, 1978 preliminary objections would have been untimely filed, the petitioners did not object below to their timeliness, and they failed, thereby, to preserve the issue for review upon appeal. The petitioners responded to DOT's preliminary objections by way of an "answer" in which the timeliness of the former pleading was not challenged. However, the proper manner in which to raise a challenge to the preliminary objections would have been by a preliminary objection to the preliminary objections in the form of a motion to strike for lack of conformity to law or rule of court. Pa.R.C.P.No. 1017(b); Milk Marketing Board v. Sunnybrook Dairies, Inc., 32 Pa.Commonwealth Ct. 313, 379 A.2d 330 (1977). Having failed to raise the matter below, the petitioners are deemed to have waived their objection to the untimeliness of DOT's pleading. Rufo v. Bastian-Blessing Company, 417 Pa. 107, 207 A.2d 823 (1965).

Preliminary objections admit as true all facts which are well and clearly pleaded, but not the pleader's conclusions or averments of law, Commonwealth's Crosstown Expressway Appeal, 3 Pa.Commonwealth Ct. 1, 281 A.2d 909 (1971). The question before us, therefore, is whether or not the trial court erred in determining that averments contained in the petitioners' petition for the appointment of viewers, when so considered, failed to state a cause of action for compensable injury by reason of a de facto taking. Id.

The petitioners argue that, under the circumstances present here, a de facto taking of their property was effected. They note that the publicized highway plans showed a total taking of the property, that DOT sent them a written notification of intention to take, and that DOT appraised the property and then communicated a written offer to purchase coupled with notice of the date on which the Commonwealth would take possession. The petitioners assert that they have been deprived of the use and enjoyment of their family home and that where, as here, there is no market for the property because of the planned Blue Route, there has been a taking.

Section 502(e) of the...