Conroy-Prugh Glass Co. v. Com., Dept. of Transp.

• Decision Date: 01 July 1974
• Docket Number: CONROY-PRUGH
• Citation: 321 A.2d 598,456 Pa. 384
• Parties: GLASS COMPANY, Appellant, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, Appellee.
• Court: Pennsylvania Supreme Court

Page 598

321 A.2d 598

456 Pa. 384

CONROY-PRUGH GLASS COMPANY, Appellant, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, Appellee.

Supreme Court of Pennsylvania.

July 1, 1974.

J. Craig Kuhn, Kuhn, Engle, Blair & Stein, Pittsburgh, for appellant.

Andrew L. Weil, Sp. Asst. Atty. Gen., Robert W. Cunliffe, Deputy Atty. Gen., Israel Packel, Atty. Gen., Harrisburg, for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, NIX and MANDERINO, JJ.

OPINION OF THE COURT

O'BRIEN, Justice.

Appellant, Conroy Prugh Glass Company (Conroy), is the owner of two four-story interconnected industrial buildings located at 1430 Western Avenue in the City of Pittsburgh, near the northern end of the West End Bridge on Pittsburgh's Northside. According to appellant, ¹ beginning in 1959, the Commonwealth of Pennsylvania has promulgated, publicized, and partly carried into execution, plans for the extension of the Ohio River Boulevard on both sides of appellant's property, but the construction of the interchange between the West End Bridge and the Ohio River Boulevard has not yet been started. Since 1963, the Commonwealth has submitted seven alternative plans for the section of the extension of the proposed highway which includes the interchange, but none has yet been formally approved. Each of the seven alternative proposals involves a complete taking of appellant's property.

The proposed extension of the Ohio River Boulevard has been widely publicized in the Pittsburgh papers, because it seriously affects the economic future of Pittsburgh's Northside area. Prior to the beginning of the publicity about the highway program, appellant received rental income in excess of $30,000 in the years 1960, 1961 and 1962, when seventy percent of the useable floor space was occupied. By reason of the public announcements made by the Commonwealth throughout the 1960's, and particularly the publicizing of the preliminary design plans for the extension of the Ohio River Boulevard, appellant began to lose tenants at an accelerated rate so that, during the years 1966 and 1967, only fifty percent of the useable floor space was occupied and, in the years 1968, 1969 and 1970, occupancy was so diminished that rentals did not cover taxes and operating expense. In 1971, the property was listed for sale by the Treasurer's Office of the City of Pittsburgh. Finally, on March 7, 1971, appellant filed a petition for the appointment of viewers under § 502(e) of the Eminent Domain Code of 1964, 26 P.S. § 1--502(e), alleging that the Commonwealth had effected a taking of its property, but had not filed a declaration of taking. The Commonwealth filed preliminary objections to the petition for the appointment of viewers, alleging, Inter alia, that appellant had failed to set forth a cause of action under the Eminent Domain Code, and failed to set forth the date of the alleged taking or in what manner the alleged taking occurred.

Appellant then filed a request for admissions consisting of nine requests concerning some of the above-related facts about the preliminary designs and the publicity concerning the proposed extension of the Ohio River Boulevard, to most of which the Commonwealth agreed. Appellant then filed a motion for summary judgment and an affidavit containing the above-related facts concerning the rental history of the property during the period immediately prior to and after the publicizing of the proposed highway extension and the fact that the loss of rents had led to the property's being listed for Treasurer's Sale. After argument, the Court of Common Pleas of Allegheny County sustained the Commonwealth's preliminary objections and denied appellant's motion for a summary judgment, reasoning that the facts presented by appellant did not 'give rise to such 'exceptional circumstances' as would constitute a de-facto taking of appellant's property.'

Appellant then appealed to the Commonwealth Court, which affirmed the decision of the Court of Common Pleas of Allegheny County. Conroy-Prugh Glass Co. v. Commonwealth, 7 Pa.Cmwlth. 6, 298 A.2d 672 (1973). We granted allocatur because of the importance of the issues involved.

The Pennsylvania Legislature recognized the concept of 'de facto' taking when it enacted § 502(e) of the Eminent Domain Code, providing:

'If there has been a compensable injury suffered and no declaration of taking therefor has been filed, a condemnee may file a petition for the appointment of viewers. . . .'

We defined such a taking in the case of Griggs v. Allegheny County, 402 Pa. 411, 414, 168 A.2d 123, 124 (1961), reversed 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962), when we said:

'A 'taking' occurs when the entity clothed with the power of eminent domain substantially deprives an owner of the use and enjoyment of his property.'

Since the Griggs case, the only appellate decision finding that a de facto taking might have occurred in a highway construction project was Commonwealth's Crosstown Expressway Appeal, 3 Pa.Cmwlth. 1, 281 A.2d 909 (1971). In Crosstown, the court related the following:

'The acts and activity of the Commonwealth beginning in September 1967 alleged to constitute compensable injury to his property, and thus a defacto condemnation, consist of public proclamations of the proposed route; public statements of the imminence of condemnation which would probably occur on or before December 1, 1968; negotiating for and amicably acquiring properties within the proposed route; notice to tenants and owners of properties of the imminence of condemnation including tenants and prospective tenants of the petitioner's premises; appraisal activity; public announcements that just compensation would be paid to condemnees; and the urging of the City of Philadelphia to impede private development of properties within the proposed route and to approve the project. Also specifically averred is the loss by the property owner and his inability to find new tenants by reason of these acts and activity of the Commonwealth.'

In its opinion in the instant case, the Commonwealth Court apparently seeks to distinguish its decision in Crosstown, supra, on the grounds that in Crosstown, unlike the instant case, although there had been no formal condemnation of the property involved, there had been amicable acquisition of nearly properties and notices to owners of property in the neighborhood and their tenants that condemnation was imminent. We do not the distinctions to be significant. The amicable acquisition of other property in the neighborhood is important because it shows that the Commonwealth's plans for the proposed highway were fixed and the condemnation of the complaining owner's property was inevitable. However, in the instant case, according to Conroy's averments, the condemnation of its property is equally inevitable because of its location with regard to the West End Bridge. That bridge is already owned by the Commonwealth and its location fixes the location of connecting ramps between the bridge and the proposed highway. Consequently, no matter where the proposed highway is built, since it must be connected with the bridge and since Conroy's property is located at the end of the bridge, the eventual formal condemnation of appellant's property is inevitable as can be seen by the fact that all seven plans filed for the proposed project show a taking of appellant's property.

In our view, in addition to the fact that in both Crosstown and the instant case, the eventual condemnation of the property was inevitable, a significant fact about the properties is that in both cases the property owner alleges that the publicity about the inevitable condemnation caused a loss of tenants, making the property useless for its highest and best use--commercial property. It is the presence of this fact which serves to distinguish Crosstown and the instant case from Commonwealth Appeal, 422 Pa. 72, 221 A.2d 289 (1966). In that case, we held that the recording of a plan designating the future location of a proposed highway which recording precluded a property owner from making any improvements within the designated route did not constitute a 'taking.' After deciding that the Commonwealth's recording could not...