IN RE CONDEMNATION BY COM., DEPT. OF TRANSP.

• Decision Date: 18 March 1999
• Citation: 727 A.2d 618
• Parties: In re CONDEMNATION BY the COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, OF RIGHT OF WAY FOR STATE ROUTE 0079, SECTION W10, a Limited Access Highway, in the Township of Cecil. Dennis Sluciak, Appellant.
• Court: Pennsylvania Commonwealth Court

727 A.2d 618

In re CONDEMNATION BY the COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, OF RIGHT OF WAY FOR STATE ROUTE 0079, SECTION W10, a Limited Access Highway, in the Township of Cecil.

Dennis Sluciak, Appellant.

Commonwealth Court of Pennsylvania.

Argued November 18, 1998.

Decided March 18, 1999.

W. Patric Boyer, Washington, for appellant.

Walter F. Cameron, Jr., Pittsburgh, for appellee. Before COLINS, President Judge, and McGINLEY, J., SMITH, J., PELLEGRINI, J., FRIEDMAN, J., KELLEY, J., and FLAHERTY, J.

McGINLEY, Judge.

Dennis Sluciak (Appellant) appeals from an order of the Court of Common Pleas of Washington County (trial court) that determined that his property was not landlocked as a result of a taking by the Commonwealth of Pennsylvania, Department of Transportation (Department).

Appellant's parents, Helen and Joseph Sluciak (Mr. and Mrs. Sluciak), purchased a sixty acre parcel of land in the Township of Cecil, Washington County, in April 1938. In August 1938, Mary Dagsher (Dagsher) and her husband purchased the adjoining property. Mr. and Mrs. Sluciak, who used the property as a farm, had frontage on Grudevich Road but used a driveway that cut across a "sliver" of property owned by Dagsher to access Grudevich Road (Sliver).¹ Appellant and Mr. and Mrs. Sluciak have maintained this access over the Sliver since 1938. Appellant and Mr. and Mrs. Sluciak attempted to purchase the Sliver at various times since 1938 without success. By the 1970's Appellant had established a landscaping business on the property and later headquartered an excavating business there. In 1985, Mrs. Sluciak subdivided the property and gave one parcel to Appellant and one parcel to her other son. Appellant and his brother and, before that, Appellant's father were solely responsible for the maintenance and repair of the Sliver.

Prior to the condemnation, Appellant's property had eight hundred linear feet of frontage on Grudevich Road, which Appellant could have used for access. On April 21, 1993, the Department filed a declaration of taking and acquired 12.190 acres of Appellant's property including the eight hundred feet of frontage. Appellant received a copy of the declaration of taking, notice of condemnation and property plan. Appellant did not file preliminary objections to the declaration of taking. On May 17, 1993, Appellant signed an estimated just compensation application and subsequently received estimated just compensation of $145,000. The Department valued Appellant's property at $460,000 prior to the taking and at $315,000 after the taking.

On October 12, 1993, Appellant petitioned for appointment of a board of viewers (board). Before the board on March 24, 1994, Appellant testified that he had no legal access to his property after the taking and that the only access was over the Sliver, which he did not own. Appellant asserted that the property was landlocked by the condemnation, that the property was an assembled economic unit and the value after the taking was zero, resulting in damages greater than three million dollars.² On October 28, 1994, the board found that Appellant's property did not abut Grudevich Road but that he had either an irrevocable license or an easement by necessity over the Sliver. The board also found that the assembled economic unit doctrine was inapplicable and found damages in the amount of $145,000. On November 22, 1994, Appellant appealed to the trial court.

Subsequently, in February 1997, the Department condemned the Sliver and insured that Appellant has access to Grudevich Road. Both Appellant and the Department requested that the trial court schedule a hearing on the access issue. Originally, this request was denied as was the parties' request for reconsideration. However, on April 2, and April 14, 1997, the trial court held hearings to determine whether Appellant's property was landlocked.³ At the hearing Appellant testified that he, and his father previously, tried to purchase the Sliver but were unsuccessful. Notes of Testimony, April 2, 1997, (N.T.) at 23-24; Reproduced Record (R.R.) at 115-116. On cross-examination, Appellant stated that he spent "a couple of thousand dollars" improving the driveway over the Sliver with ripped up asphalt, reddog, stone and slag. N.T. at 43; R.R. at 135.

Jonathan G. Mounts (Mounts), a registered professional engineer and a professional land surveyor, testified on Appellant's behalf. Mounts performed a survey of Appellant's property on May 22, 1987. Mounts testified within a reasonable degree of engineering certainty that Appellant's property did not border Grudevich Road at the location of the Sliver and that Appellant had to travel over the Sliver to access Grudevich Road. N.T. at 73-74; R.R. at 165-166. Mounts also testified that a 1983 survey prepared by Englehart-Power Associates inaccurately indicated that Appellant's property bordered Grudevich Road at the Sliver in the vicinity of the driveway. Mounts concluded that Appellant's property was landlocked. N.T. at 78; R.R. at 170.

Mrs. Sluciak testified that Mr. and Mrs. Dagsher owned the Sliver and that she and her husband unsuccessfully attempted to purchase it, but that she and her family continued to cross the Sliver. N.T. at 94; R.R. at 186. David Johnson (Johnson), son-in-law of Mrs. Dagsher, testified that neither Appellant nor his family ever acquired the Sliver or an easement or a right-of-way. N.T. at 104; R.R. at 196. He testified that it was his understanding that Appellant had permission to cross the Sliver.⁴

Michael H. Dufalla (Dufalla), Department district engineer and formerly president of Englehart-Power Associates, testified for the Department that he surveyed Mrs. Sluciak's property in 1983 and determined that the property abutted Grudevich Road and concluded Appellant owned the Sliver. N.T. at 112-113; R.R. at 204-205. Charles J. Brannigan, formerly Right-of-Way administrator for the Department, testified that the Department did not consider the property to be landlocked based on plans provided by Appellant. N.T. at 146; R.R. at 238. When Walter Cameron, the Department's attorney, attempted to question Brannigan concerning the Department's subsequent condemnation of the Sliver, Appellant's attorney, W. Patric Boyer, objected on the grounds that this Court in Appeal of Philadelphia Electric Co., 135 Pa.Cmwlth. 100, 580 A.2d 424 (1990), petition for allowance of appeal denied, 528 Pa. 615, 596 A.2d 161 (1991) (PECO) disallowed evidence of any subsequent condemnation. The trial court sustained the objection. N.T. at 148-149; R.R. at 240-241.

Sidney Mastrangelo, Cecil Township building inspector, testified that Appellant had submitted an application for a building permit which included a sketch of his property that indicated it abutted Grudevich Road at the Sliver. N.T. 161-164; R.R. at 252-255. David Hirschle, Cecil Township planning director, testified that a survey prepared by Pittsburgh Design and Equipment for Sluciak Contracting, Inc. indicated that Appellant's driveway over the Sliver abutted Grudevich Road. Finally, Francis Chiapetta, the appraiser retained by the Department, testified that he did not appraise Appellant's property as landlocked because of the access over the Sliver. N.T. at 174; R.R. at 266.

On April 10, 1997, the trial court determined that Appellant's property was not landlocked for the following reasons:

[T]he Commonwealth of Pennsylvania has cured the access issue. The various surveys and applications for building permits/subdivisions relative to Condemnor's realty show a discrepancy in the property line for his driveway onto Grudevich Road. The record reveals that from 1938 to the present date the Sluciak family has utilized the subject driveway for ingress and egress. In addition, the Sluciaks have been solely responsible for the maintenance, repair and snow removal of said driveway. Finally, Condemnor has transacted his business from the remaining tract of land uninterupted [sic].

Trial Court Order at 1; R.R. at 83.

Appellant contends that the trial court erroneously determined that he has the right to access Grudevich Road over the Sliver and that the trial court committed an error of law when it partially based this determination on the subsequent condemnation of the Sliver by the Department.⁵

In PECO, the Department filed a declaration of taking for approximately fifteen acres owned by the Philadelphia Electric Company (company) on August 21, 1972. The Department's taking resulted in the severing of the company's property thereby cutting off access between a service building and a headquarters for overhead transmission maintenance. Beginning in 1965, officials from the company and the Department had discussed the need for an access road and, on February 5, 1973, the Department filed a notice condemning a highway easement over a parcel of land in order to afford the company access. PECO, 580 A.2d at 425-426. A board of viewers awarded the company general damages and moving expenses totaling $2,724,370.00. Id., 580 A.2d at 426. The Court of Common Pleas of Montgomery County confirmed but modified the award, and the parties appealed. The company argued that consideration of the access road, which was acquired six months after the taking of the company's property, was not relevant in evaluating the fair market value of the remaining property. This Court agreed, noting that the plain language of Section 602(a) of the Eminent Domain Code (Code)⁶ requires that post condemnation value is to be determined immediately after condemnation. Id., 580 A.2d at 429. Section 602(a) of the Code states, "Just Compensation shall consist of the difference between the fair market value of the condemnee's entire property interest immediately before the condemnation and as affected thereby, and such other damages as are provided in this code." (emphasis added). 26 P.S. § 1-602(a). Under Section 606 of the Code, 26 P.S. § 1-606, ...