Daw v. Com., Dept. of Transp.

768 A.2d 1207, 2001 Pa. Commw. LEXIS 108
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 16, 2001
StatusPublished
Cited by10 cases

This text of 768 A.2d 1207 (Daw v. Com., Dept. of Transp.) 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
Daw v. Com., Dept. of Transp., 768 A.2d 1207, 2001 Pa. Commw. LEXIS 108 (Pa. Ct. App. 2001).

Opinions

PELLEGRINI, Judge.

The Commonwealth of Pennsylvania, Department of Transportation (Department) appeals from an order of the Court of Common Pleas of Allegheny County (trial court) overruling the Department’s preliminary objections to a petition for appointment of a board of viewers filed by Patricia F. Daw (Daw) to assess consequential damages under Section 612 of the Eminent Domain Code of Pennsylvania.1

Daw is the owner of property located along West Ingomar Road (Road), a two-[1209]*1209lane state route located in Allegheny County. The Daw property is contoured in such a way that the highest elevation of the property is situated where the property joins the Road. The property then slopes downward away from the Road as it approaches the Daw residence which is approximately 15-20 feet below the elevation of the Road. The driveway on the property, which is unpaved, connects with the Road at its highest elevation and also slopes steeply downward. There is also a narrow concrete sidewalk along the front of the Daw property with a low-earth mound located behind it.

The property itself is located just after the end of a super-elevated curve which aids motorists in negotiating the bend of the Road and is designed to divert water away from the high side of the Road toward the low side. As you approach the Daw driveway, the curve straightens and the Road assumes a normal crown configuration in which the center of the Road is slightly higher than its edges to allow water hitting the left side to fall left and the right side to fall right.

In July 1992, the Department resurfaced the Road by placing a one-inch thick layer of asphalt over the existing Road surface. Later that same year, the Department repaved the deteriorated berm of the Road which was comprised of cinders and soil and extended its width which was all within the Department’s right-of-way.

On March 11, 1997, Daw filed a petition for the appointment of a board of viewers pursuant to Section 502(e) of the Eminent Domain Code (Code), 26 P.S. § 502(e),2 alleging that the Department’s resurfacing of the Road by adding one inch in height to its surface changed the grade of the Road, creating severe water drainage problems and damage to Daw’s property. Daw sought to recover consequential damages authorized under Section 612 of the Code. The Department filed preliminary objections to Daw’s petition which were dismissed by the trial court on August 4, 1997. The trial court ordered the matter to proceed to the board of viewers for a hearing and the Department appealed to this Court. We vacated the trial court order because it failed to resolve the factual conflict of whether the Department’s maintenance project changed the grade of the Road and remanded to the trial court to resolve that issue.3

At the hearing on whether there was a change in grade, Daw, in her deposition, testified that while experiencing some runoff problems on her property prior to the Department’s resurfacing project, the runoff significantly increased after the project concluded. Specifically, she testified that the walls in her house began cracking and her driveway eroded away. She also testified that the sidewalk and mound located in the front of her property were there prior to her residency, and that the only repair she made to her property prior to 1992 was the addition of a new roof.

To support the contention that the paving of the Road caused her injuries, Daw offered the expert report of Donald B. Partridge, a civil engineer who is also the Town Engineer of McCandless. However, his report opined that runoff water from the Road flowed naturally down the driveway, causing erosion to the gravel surface. To prevent the runoff from flowing down Daw’s driveway, he noted that the Road should be curbed. Further, his report did not indicate that there was an increase in water runoff subsequent to the repaving, and he specifically stated that there was no damage to the house from the water running down the Road.

[1210]*1210The Department offered the deposition testimony of Andrew Cost, Maintenance Program Engineer for the Department, who testified that the earth mound located on the Daw property caused water to flow toward the Daw driveway instead of being evenly dispersed throughout her property. He further testified that the one-inch overlay placed over the Road by the Department was of uniform thickness across the width of the Road and would not cause any more water to flow on Daw’s property than had flowed prior to the repaving.

The Department also offered the deposition testimony of Richard Heiser, Highway Maintenance Manager for the Department, who performed routine maintenance on the Road. He observed the property during a rainstorm after the maintenance work was completed by the Department, and found that the water was moving away from the Daw property. Further, the water on the shoulder of the Road was falling toward the Daw property but was of no great concentration. Moreover, he observed that after the maintenance project, the berm of the Road was extended further into Daw’s property and there was not a smooth transition from the berm of the Road to her driveway.

Even though the change of grade was only one inch, the trial court dismissed the Department’s preliminary objections, finding that it was a change of grade entitling Daw to damages under Section 612 of the Code because the berm grade was changed and extended. It based its decision on Daw’s expert’s report, photographs of the damaged property and Daw’s testimony that she never experienced a substantial flow of water from the Road prior to the 1992 resurfacing project.4 This appeal followed.5

The Department contends that the trial court erred in finding that the one-inch resurfacing constituted a change in grade entitling Daw to consequential damages under Section 612 of the Code. It argues that for there to be a change of grade, it must be substantial and not merely a one-inch addition in height added as part of a normal street resurfacing project.6

Section 612 of the Code permits abutting property owners recovery of consequential damages as a result of only three causes: (1) change of grade of a road or highway; (2) permanent interference with access to a road or highway; and (3) injury to surface support. Capece v. City of Philadelphia, 123 Pa.Cmwlth. 86, 552 A.2d 1147 (1989). Under this provision, when a change in grade of the abutting street causes water run-off to damage property, a landowner is not limited to a trespass action to recover for damage to his or her property, but can also bring an action under Section 612 for a de facto taking. Borough of Dickson City v. Malley, 94 Pa.Cmwlth. 386, 503 A.2d 1035 (1986). However, unlike a trespass action, to make out a claim for consequential damages, the landowner must establish both that there was a change of grade and that [1211]*1211change caused the damages to landowner’s property.

As to the first prong, that a change in grade must result, no Pennsylvania cases have squarely addressed the issue of what constitutes a change in grade to allow an action for a de facto taking.

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Daw v. Com., Dept. of Transp.
768 A.2d 1207 (Commonwealth Court of Pennsylvania, 2001)

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Bluebook (online)
768 A.2d 1207, 2001 Pa. Commw. LEXIS 108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daw-v-com-dept-of-transp-pacommwct-2001.