Commonwealth v. Elser

620 A.2d 67, 152 Pa. Commw. 523, 1993 Pa. Commw. LEXIS 13
CourtCommonwealth Court of Pennsylvania
DecidedJanuary 7, 1993
DocketNo. 626 C.D. 1991
StatusPublished
Cited by2 cases

This text of 620 A.2d 67 (Commonwealth v. Elser) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Elser, 620 A.2d 67, 152 Pa. Commw. 523, 1993 Pa. Commw. LEXIS 13 (Pa. Ct. App. 1993).

Opinion

PELLEGRINI, Judge.

The Department of Transportation (Department) appeals from an Order of the Court of Common Pleas of Delaware County (trial court) dismissing the Department’s Preliminary Objections to a Petition for a Board of View filed by James and Caroline Elser (Elsers).

The Elsers are the owners of property at 601A Convent Road in Aston Township (Township), Delaware County. On the property, there is a multi-family dwelling in which the Elsers reside, as well as a small commercial greenhouse. The property is situated at the intersection of Convent Road, a township road, and two state highways, Concord Road and Aston Mills Road. Primary access to the property is provided by a driveway that opens on to Convent Road near the convergence of the three roads.

During 1988, the Department began installing traffic signals at the intersection of the three roads. In October of that year, the Elsers raised questions to both the Department and the Township as to how the signalization would affect the ability to safely use their driveway. Apparently realizing that use of the driveway would create an unsafe traffic condition, the Department informed the Elsers in December 1988 that it planned to construct a curb, preventing access to the property. Although the Elsers obtained an injunction to prevent the Township from constructing a curb,1 the Department contacted the Elsers on December 27, 1988, to inform them that Department trucks were on the way to the property to close the driveway by dumping a load of crushed stone in front of it. [526]*526The Department dumped the crushed stone on the driveway-later that day, preventing its use.

In an attempt to force the Department to remove the stone and prevent it from constructing a curb, allowing the driveway to be used, the Elsers filed a Petition for Review with this court,2 seeking injunctive relief. After a hearing, the requested relief was denied, because no evidence was presented that the Elsers were suffering an immediate and irreparable harm that could not be compensated by damages.

The Elsers then filed a Petition for the Appointment of Viewers in the trial court to assess damages under the Eminent Domain Code (Code).3 Their petition alleged that the Department’s actions constituted a de facto taking by both physically appropriating the portion of their property where the crushed stone was located and by permanently blocking access. In response, the Department filed Preliminary Objections contending that its deposit of crushed stones to block the driveway did not physically appropriate any of the Elsers’ property, and the denial of access to Convent Road was not a compensable injury because other access to the property existed.

The trial court dismissed the Preliminary Objections of the Department. In doing so, however, it did not hold an evidentiary hearing or otherwise take evidence on the matter. In determining that the placement of crushed stone by the Department constituted a de facto taking by both appropriating a portion of the Elsers’ property and substantially interfering with permanent access, the trial court relied on a certified copy of the transcript of the Preliminary Injunction hearing, which the Elsers had attached as an appendix to their trial brief. This appeal followed.4

[527]*527The Department asserts that the blocking of access to Convent Road is not compensable because the Elsers have reasonable alternative access to other public roads. It further contends that the trial court’s reliance on the preliminary injunction hearing transcript made before this court to find otherwise was improper because it was not properly offered into the record and because the Department was not given the opportunity to present its own evidence.

Section 612 of the Eminent Domain Code provides that action by a condemnor which permanently interferes with the right of access is a compensable taking. It provides:

All condemnors, including the Commonwealth of Pennsylvania, shall be liable for damages to property abutting the area of an improvement resulting from change of grade of a road or highway, permanent interference with access thereto, or injury to surface support, whether or not any property is taken.

26 P.S. § 1-612. See Wolf v. Department of Highways, 422 Pa. 34, 220 A.2d 868 (1966).

Compensation, however, is not required for the denial of unfettered access to the public way. A property owner only has the right “of reasonable ingress and egress ... [It] does not entitle the owner to access at all points along the highway.” Department of Transportation v. Richards, 124 Pa.Commonwealth Ct. 432, 439, 556 A.2d 510, 513 (1989). If reasonable alternative access exists, the closing of one point of access will not be considered substantial interference. Borough of Dickson City v. Malley, 94 Pa.Commonwealth Ct. 386, 503 A.2d 1035 (1986). Neither is limiting access from a particular direction a substantial interference. Simply requiring a more circuitous route is, of itself, not so unreasonable as to constitute a taking within the meaning of the Code. Commerce Land Corp. v. Department of Transportation, 34 Pa.Commonwealth Ct. 356, 383 A.2d 1289 (1978). To be reasonable, however, the alternative access must enable the property to be used for the purpose for which it had been [528]*528employed. In re Condemnation in West Fairview Borough, 23 Pa. Commonwealth Ct. 628, 354 A.2d 14 (1976) (Finkelstein); In re McCrady, 399 Pa. 586, 160 A.2d 715 (1960).

Whether there is reasonable access is a question of fact to be determined by the trial court. See City of Philadelphia v. Martorano, 38 Pa.Commonwealth Ct. 573, 394 A.2d 674 (1978).5 To resolve factual matters raised by preliminary objections, Section 504 of the Eminent Domain Code, 26 P.S. § 1-504, provides:

Objections to the form of the petition or the appointment or the qualification of the viewers are waived unless included in preliminary objections. The court shall determine promptly all preliminary objections and make such orders and decrees as justice shall require. If an issue of fact is raised, evidence may be taken by deposition or otherwise as the court shall direct. (Emphasis added).

Because whether there is reasonable alternative access is a question of fact, the Department contends that the trial court was required to take testimony to resolve that issue, and that the sole reliance by the trial court on the transcript made in the preliminary injunction hearing before this Court to make those determinations was improper.

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Bluebook (online)
620 A.2d 67, 152 Pa. Commw. 523, 1993 Pa. Commw. LEXIS 13, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-elser-pacommwct-1993.