Gamma Swim Club, Inc. v. Com. Dept. of Transp.

• Decision Date: 18 February 1986
• Parties: GAMMA SWIM CLUB, INC., Appellant, v. COMMONWEALTH of Pennsylvania DEPARTMENT OF TRANSPORTATION, Appellee. 246 C.D. 1985
• Court: Pennsylvania Commonwealth Court

Page 342

505 A.2d 342

95 Pa.Cmwlth. 167

GAMMA SWIM CLUB, INC., Appellant, v. COMMONWEALTH of Pennsylvania DEPARTMENT OF TRANSPORTATION, Appellee.

246 C.D. 1985

Commonwealth Court of Pennsylvania.

Argued Dec. 13, 1985.

Decided Feb. 18, 1986.

John T. Mulligan, Media, for appellant.

Scott Olin, Philadelphia, Edward D. Werblun, Office of Chief Counsel, Harrisburg, for appellee.

Before CRAIG and COLINS, JJ., and KALISH, Senior Judge.

CRAIG, Judge.

Gamma Swim Club, Inc. appeals from an order of the Court of Common Pleas of Delaware County sustaining preliminary objections of the Department of Transportation (department) to the swim club's petition for the appointment of viewers alleging a de facto eminent domain taking. ¹

Also before us is the swim club's motion to remand.

Motion to Remand

The swim club has requested a remand to the trial court to allow it to present evidence as to matters which have occurred since the hearing in May, 1984. This court is familiar with motions to remand because the lower court or administrative body failed to make necessary findings of fact or the findings of fact and conclusions of law were inconsistent, or because the applicable law had changed since the original proceeding. This court is also familiar with motions for a new trial to consider after-acquired evidence. However, neither statute nor case law provides for consideration of events which have occurred since the original proceeding. Because the swim club's motion most closely resembles a motion for new trial to consider after-acquired evidence, we will evaluate the motion before us in that light.

The party requesting a new trial must demonstrate that the after-acquired evidence: (1) was discovered after the trial; (2) could not have been obtained by reasonable diligence in time for trial; (3) is not cumulative or merely to impeach credibility; and (4) is likely to compel a different result. R. & S. Millwork, Inc. v. Department of Transportation, 42 Pa. Commonwealth Ct. 624, 401 A.2d 587 (1979).

The swim club asserts in its motion that "the additional evidence it now has is [not] necessary to its case." That cautious assertion negates the requisite that the evidence to be considered is likely to compel a different result, making a remand here meaningless.

Accordingly, we will deny the swim club's motion to remand.

Merits as to De Facto Taking

Concerning the concept of de facto taking, section 502(e) of the Eminent Domain Code states:

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....

A de facto taking occurs when an entity clothed with the power of eminent domain substantially deprives an owner of the use and enjoyment of his property. Conroy-Prugh Glass Co. v. Department of Transportation, 456 Pa. 384, 321 A.2d 598 (1974).

The trial court adopted the parties' stipulation of facts. The 11.6 acre swim club is directly in the path of Legislative Route 1010 in Delaware County, known as the Blue Route. The department had informed the swim club that its property would be needed for construction of the highway, but did not file a declaration of taking to condemn the swim club's land. During the twenty-four years before the swim club filed its petition, there had been substantial publicity about the imminence of condemnation of properties directly situated in the path of the Blue Route. Although the trial court did not make a finding regarding the swim club's membership, testimony indicated that "at one time" there were 400 dues-paying bondholders. The number of dues-paying bondholders began to decline in the mid-70's to a low of 102 dues-paying bondholders in 1984. The trial court noted that the swim club continued to pay all taxes but did not adopt the swim club's assertion that its property was in disrepair and that it lacked necessary income to maintain its upkeep.

The trial court dismissed the swim club's petition for appointment of viewers because (1) the swim club was not "in danger of loss by tax sale or mortgage foreclosure," and (2) the swim club did not demonstrate that its property was unmarketable "since the subject property has never been advertised or listed for sale nor has it been shown to any prospective buyer."

The issue is whether substantial evidence supports the trial court's decision that the swim club did not establish a de facto taking of its property. ² Although substantial evidence supports the court's findings, and the trial court did not commit an error of law, we will affirm the dismissal of the petition for the appointment of viewers on different grounds than those of the trial court.

The Supreme Court stated in Conroy-Prugh that a commercial property owner had to allege significant facts to entitle him to relief to support the petition for the appointment of viewers under section 502(e) of the Eminent Domain Code. One of the significant facts alleged in Conroy-Prugh, mentioned in a footnote, was that the owner was facing the loss of his property because of the property's inability to generate enough rental income to pay taxes. The threat of losing one's property is indicative of a loss of income. Consequently, that loss of income tends to confirm the loss of value of the property. In a commercial setting, a showing that the imminence of condemnation has destroyed the capacity of the property to generate income will result in a conclusion that "the property of the appellant has been injured and what the [entity with the power of eminent domain] has done constitutes a taking in the constitutional sense," for the reason that there has been a deprivation of its use and enjoyment. Conroy-Prugh, 456 Pa. at 391, 321 A.2d at 601, quoting Philadelphia Parkway, 250 Pa. 257, 95 A. 429 (1915).

However, proof of a threatened loss of title to the property is not...