Nether Providence Tp. v. Jacobs

• Decision Date: 01 December 1972
• Parties: NETHER PROVIDENCE TOWNSHIP, Appellant, v. G. William JACOBS and Lillian E. Jacobs, Appellees. *
• Court: Pennsylvania Commonwealth Court

Page 550

297 A.2d 550

6 Pa.Cmwlth. 594

NETHER PROVIDENCE TOWNSHIP, Appellant, v. G. William JACOBS and Lillian E. Jacobs, Appellees.^*

Commonwealth Court of Pennsylvania.

Argued Oct. 5, 1972.

Decided Dec. 1, 1972.

John W. Wellman, Fronefield, DeFuria & Petrikin, Media, for appellant.

William G. Adamson, Delaware County Legal Assistance Ass'n, Inc., Media, for appellees.

Before BOWMAN, President Judge, and CRUMLISH, Jr., KRAMER, WILKINSON,

MENCER, ROGERS, and BLATT, JJ.

BOWMAN, President Judge.

Procedure questiions involved in this case impinge upon the substantive issue of whether a property owner's allegations of actions taken by a local government are sufficient, if proven, to establish a de facto 'taking' or compensable injury within the meaning of the Eminent Domain Code, Act of June 22, 1964, Special Session, P.L. 84, as amended, 26 P.S. § 1--101 et seq.

Appellees own residential property in Nether Providence Township, Delaware County. On March 5, 1971, they filed a petition for the appointment of viewers seeking redress from the township for damages to their property caused by the flooding of a drainage ditch and creekbed at the rear of their property allegedly caused by the concentration and channeling of storm water drainage into their property from three 'upstream' land developments.

With respect to the construction of four houses on acreage formerly an orchard it is alleged that the township approved the project under a subdivision ordinance and drainage 'from the tract was approved.' Similarly, as to the construction of a nursing home, the township is alleged to have approved the same 'under general powers' and drainage 'from this tract was approved.' As to the third development, a new high school facility on a forty acre tract requiring extensive regrading and drainage of a swampy area which included the construction of a collecting pond, it is alleged that the township 'participated in design and approved drainage of this tract.'

The township filed preliminary objections asserting that (1) the court lacked jurisdiction to entertain the petition, (2) petitioners failed to state a cause of action, and (3) a prior action in equity by the property owners against the township involving the same facts is res judicata of this proceeding.

After argument, a majority of the court dismissed the township's preliminary objections and directed the viewers to make findings of fact respecting petitioners' claim that the township had effected a taking 'in accordance with Section 511(4) of the Eminent Domain Code.' It is from this order that the township has appealed to this Court, to which appeal petitioners (appellees here) filed a motion to quash for want of an appealable order.

Procedural questions of first impression arise from this order and its supporting opinion by a majority of the court.

Although the Eminent Domain Code does not specifically so provide, we have sanctioned the use of preliminary objections as the appropriate procedure to test the legal sufficiency of a petition for the appointment of viewers filed by a property owned alleging a de facto 'taking' or compensable injury to his property by a governmental body. Commonwealth's Cross-town Expressway Appeal, 3 Pa.Cmwlth. 1, 281 A.2d 909 (1971).

Not raised in nor specifically decided by Crosstown, however, are the respective roles of the trial court and the viewers in those cases in which preliminary objections in the nature of a demurrer are filed by the governmental body to the property owner's petition. If the trial court concludes as a matter of law that the averments of a property owner's petition, taken as true, are insufficient to state a cause of action of a de facto 'taking' or compensable injury, it should, of course, sustain the preliminary objections and dismiss the petition or possibly allow the petitioner to enlarge his pleading.

More troublesome, however, are those instances in which the trial court concludes that such averments, if proven, may or do make out a cause of action for which compensable injury or damages might be established. Should the matter then proceed to the viewers with subsequent review by the court or should the trial court itself proceed to make an evidentiary record, if necessary, and then determine the legal sufficiency of the claim?

In the instant case a majority of the trial court was of the opinion that the matter should proceed to the viewers whom it charged to make findings of fact as to whether a de facto 'taking' was effected and that this issue would then be subject to further review by the court.

The role of preliminary objections to a formal declaration of taking in eminent domain cases as prescribed by Section 406 of the Eminent Domain Code, 26 P.S. § 1--406, and as construed by the Supreme Court and this Court is not precisely that of preliminary objections as prescribed by the Pennsylvania Rules of Civil Procedure in actions covered by those rules. In eminent domain cases, they serve a somewhat broader purpose and are...