Commonwealth v. Greenfield Township—Property Owners

582 A.2d 41, 135 Pa. Commw. 113, 1990 Pa. Commw. LEXIS 488
Commonwealth Court of Pennsylvania·Decided September 7, 1990·No. No. 761 C.D. 1989·Published·Cited by 14 cases

Opinions

PELLEGRINI, Judge.

The Commonwealth of Pennsylvania, Department of Transportation (PennDot) appeals from an Order of the Court of Common Pleas, Erie County, which ordered Penn-Dot to pay damages to Dan F. and Arlene DeMarco (DeMarcos) for the de facto taking of 68.77 acres of their property.

The DeMarcos were the owners of approximately 100 acres in Greenfield Township, Erie County. On September 18, 1985, PennDot filed a declaration of taking which condemned 15.08 acres of the DeMarcos’ land for the construction of the Southern Tier Expressway (Expressway). The DeMarcos never filed preliminary objections to the declaration of taking. PennDot paid the DeMarcos $16,300 for the condemned property and took possession on May 5, 1986. The condemnation bisected the remaining DeMarcos’ property into two parcels, one containing 16.86 acres north of the Expressway and the other containing 68.77 acres south of the Expressway. As a result of the condemnation, the DeMarcos were denied all access to the southern portion of their property.

PennDot attempted to cure this lack of access by condemning a portion of property, referred to as “Parcel 21,” owned by an adjacent landowner and deeding that property over to the DeMarcos to provide them them with a right-of-way to the southern portion of their property. The DeMarcos found this solution failed to give them access because Parcel 21 was a gully with a ravine running through the land and was impassable by car. Thereafter, on December 17, 1986, the DeMarcos petitioned for the Appointment of a Board of Viewers (Board) alleging a de facto taking of the southern 68.77 acres of their property as a result of that property being landlocked. A viewing was held and the [117]*117Board found that the southern 68.77 acres were not landlocked because there was access to that property via Parcel 21. Consequently, the Board determined that a de facto taking had not occurred. The Board assessed the DeMarcos’ damages at $26,000, less $16,300 which had previously been paid to the DeMarcos, plus interest.

The DeMarcos appealed the Board’s findings to the Court of Common Pleas in Erie County. The trial court determined that the southern portion of the DeMarcos’ property was landlocked because Parcel 21 did not provide any access to the DeMarcos’ property, and, therefore, a de facto taking of that property had occurred.1 The trial court also determined that the DeMarcos were entitled to damages for the effects of PennDot landlocking the southern portion of the property, separate and above from the damages awarded by the Board which were to be determined by a jury. The trial court further found that consequential damages were inappropriate because there had been a de facto taking. PennDot then appealed the trial court’s decision to this court, alleging that a de facto taking had not occurred, and that the DeMarcos were not entitled to the damages they were awarded.

The issues now before us are whether the DeMarcos are precluded from alleging a de facto taking because they did not file preliminary objections to the declaration of taking, and whether the trial court erred by determining that there was a de facto taking of the southern 68.77 acres and finding that the DeMarcos were entitled to both damages awarded from the Board plus additional damages to be awarded by a jury.

PennDot contends that the DeMarcos are now precluded from alleging a de facto taking of their property because they never filed preliminary objections to Penn-[118]*118Dot’s declaration of taking.2 They rely on the case of Nelis v. Redevelopment Authority of Allegheny County, 12 Pa. Commonwealth Ct. 338, 315 A.2d 893 (1974), for the proposition that when a formal declaration of taking has already been filed, the declaration of taking precludes the applicability of the petition alleging a de facto taking when preliminary objections have not been raised.

However, in City of Pittsburgh v. Gold, 37 Pa.Commonwealth Ct. 438, 390 A.2d 1373 (1978), this court held that a landowner who had suffered damages to his property as the result of a condemnation proceeding but who had not filed preliminary objections to the declaration of taking, was not precluded from alleging a de facto taking because the landowner learned of the damage to his property two years after the declaration of taking was filed. Similarly, in this case, the DeMarcos did not file preliminary objections at the time the declaration of taking was filed because they were unaware that their property had been landlocked. The DeMarcos were reassured by PennDot that a right-of-way to their property would be provided when Parcel 21 was deeded over to them. The trial court found that the DeMarcos’ 30-day appeal period was not tolled at the time Parcel 21 was condemned because the DeMarcos were not parties to the proceeding condemning Parcel 21. Therefore, based on the holding in Gold, we find that the DeMarcos’ failure to file preliminary objections in order to preserve their right to allege a de facto taking was not fatal to their case.

PennDot admits that they are liable to the DeMarcos for consequential damages, but contend that the trial court erred in finding a de facto taking because PennDot had no need for all of the DeMarcos’ land never entered and if [119]*119PennDot diminished the value of the land, the DeMarcos would be entitled to receive consequential damages pursuant to Section 612 of the Code.3 In order to establish whether consequential damages are more appropriate than condemnation damages for a de facto taking, PennDot’s actions must be examined to see whether they only affected the property or whether they substantially deprived the DeMarcos of the use and enjoyment of their property, and the deprivation was the direct and necessary consequence of PennDot’s actions. McGaffic v. Redevelopment Authority of the City of New Castle, 120 Pa.Commonwealth Ct. 199, 548 A.2d 653 (1988).

Contrary to PennDot’s assertion, neither physical appropriation nor a formal divestiture of an owner’s title are required to create a right to file a de facto taking. The law is well settled that when an entity clothed with the power of eminent domain has, by even a non-appropriative act, substantially deprived an owner of the beneficial use and enjoyment of his property, a de facto taking will be deemed to have occurred. Petition of Borough of Boyerton, 77 Pa.Commonwealth Ct. 357, 466 A.2d 239 (1983). Consequential damages only apply to property affected by a de jure or de facto taking or an activity by which a condemnor changes a grade of road or highway, permanently interferes with access to property, or causes injury to surface support.

In this case, the trial court properly determined that the DeMarcos had established a de facto

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Commonwealth v. Greenfield Township—Property Owners, 582 A.2d 41, 135 Pa. Commw. 113, 1990 Pa. Commw. LEXIS 488 (Pa. Ct. App. 1990).

582 A.2d 41 (Commonwealth v. Greenfield Township—Property Owners) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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