Elser v. Commonwealth, Department of Transportation

651 A.2d 567, 1994 Pa. Commw. LEXIS 658
CourtCommonwealth Court of Pennsylvania
DecidedDecember 2, 1994
StatusPublished
Cited by24 cases

This text of 651 A.2d 567 (Elser v. Commonwealth, Department of Transportation) 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
Elser v. Commonwealth, Department of Transportation, 651 A.2d 567, 1994 Pa. Commw. LEXIS 658 (Pa. Ct. App. 1994).

Opinions

SMITH, Judge.

This matter comes before the Court upon an application of James and Caroline Elser to reargue the issues in this case due to errors committed in this Court’s June 2,1994 decision which reversed the May 24, 1993 order of the Court of Common Pleas of Delaware County overruling preliminary objections filed by the Department of Transportation to the Elsers’ petition to appoint a board of view. The Elsers sought an assessment of damages pursuant to Section 502(e) of the Eminent Domain Code, Act of June 27, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § l-502(e), for the de facto taking of a portion of their property.1 Upon reargument of this matter and further consideration of the issues raised, this Court now affirms the May 24, 1993 order of the Court of Common Pleas.2

[569]*569In 1988, the Department undertook the installation of traffic signals at the intersection of Concord Road, Convent Road, and Aston Mills Road in Aston, Pennsylvania. The Elsers own property located on Convent Road in Aston where they reside. The driveway to their property exits onto Convent Road which is owned by Aston Township, and the driveway is not within the Department’s right-of-way for state highways Concord Road and Aston Mills Road, approximately fifteen feet from the property. The trial court found that Mr. Elser was informed by the Department in December 1988 that it planned to curb the driveway shut and to bill Mr. Elser for the cost and that after construction, the Elsers would be unable to use their driveway to enter the intersection. On December 27, 1988, the Department contacted the Elsers’ home to advise that Department trucks were on the way to dump stone in the driveway and to close it, and later that day two truckloads of stone were dumped in the driveway blocking access to the property. The Department’s action occurred precisely one day after the Elsers, through legal counsel, obtained a stop work order against Aston Township because some of the wires for traffic signals being installed by the Department were placed outside of its right-of-way.

The Elsers filed their petition for the appointment of a board of view to assess damages to their property after this Court’s denial of injunctive relief to the Elsers. (See Elser v. Aston Township, et al., No. 3086 C.D.1988, Memorandum Op. filed May 5, 1989.) The Department filed preliminary objections to the petition under Section 504 of the Eminent Domain Code, 26 P.S. § 1-504, and alleged that the dumping of stone on the property did not represent a taking nor did it block assess to the property. After considering a transcript of the preliminary injunction hearing before this Court on February 13, 1989 and testimony from the parties elicited at hearing on March 1, 1993, the trial judge concluded that the Department appropriated an area of the Elsers’ property where stone was dumped, constituting a substantial interference with permanent access to the property which is compensable under the Eminent Domain Code.3 As a consequence, the trial court once again overruled the Department’s preliminary objections.

The Department thereafter appealed to this Court which reversed the trial court. In its June 2,1994 opinion and order, the Court concluded that the Elsers failed to demonstrate that the Department authorized the dumping of two truckloads of stone onto the property, an issue not argued by the Department, and that while a trespass may have begun at the time of dumping, no de facto taking in fact had occurred, citing Deets v. Mountaintop Area Joint Sanitary Auth., 84 Pa.Commonwealth 300, 479 A.2d 49 (1984). The Court also stated that the presence of the stone did not represent a direct and necessary consequence of government activity required for a taking, and the Elsers failed to meet their burden to show an exceptional circumstance which substantially deprived them of the use of their property and that the deprivation was a direct and necessary consequence of the actions of an entity clothed with the power of eminent domain.

Upon further consideration of the issues reargued in this case, the Court is now convinced that the trial court properly concluded that a de facto taking occurred when the Department appropriated an area of the Elsers’ property where the stone was [570]*570dumped.4 The trial court found that on December 27, 1988, the Department contacted the Elsers’ home to advise that trucks were on the way to dump stone in the Elsers’ paved driveway and to close it, blocking the only access to the property; the stone was dumped without notice or hearing other than a phone call to the household; the Department made no offer to replace the driveway or move it to another location; no alternative route existed for ingress or egress to the property until the stone was dumped and the route created by necessity; and the Department substantially interfered with the permanent access to the property. After the stones were dumped in the driveway, the Elsers were forced to drive across their yard of dirt and grass for access.

A de facto taking occurs when an entity clothed and vested with power of eminent domain substantially deprives property owners of use and enjoyment of their property; the owners must establish in such a proceeding that deprivation of their property was the direct and necessary consequence of the actions of the entity, here, the Department of Transportation. Yanssens v. Municipal Auth. of Township of Franklin, Beaver County, 139 Pa.Commonwealth Ct. 624, 591 A.2d 335 (1991); McGaffic v. Redevelopment Auth. of New Castle, 120 Pa.Commonwealth Ct. 199, 548 A.2d 653 (1988), appeals denied, 523 Pa. 644, 645, 565 A.2d 1168, 1169 (1989). See also Capece v. City of Philadelphia, 123 Pa.Commonwealth Ct. 86, 552 A.2d 1147 (1989).

The right of access to one’s property has been defined as the right to reasonable ingress and egress to the property. Department of Transportation v. Richards, 124 Pa.Commonwealth Ct. 432, 556 A.2d 510 (1989). Reasonable access to one’s property is a question of fact to be determined by the trial court. City of Philadelphia v. Martorano, 38 Pa.Commonwealth Ct. 573, 394 A.2d 674 (1978). Moreover, a landowner may seek damages to his or her property in either trespass or eminent domain. Pittsburgh National Bank v. Equitable Gas Co., 421 Pa. 468, 220 A.2d 12, cert. denied, 385 U.S. 988, 87 S.Ct. 600, 17 L.Ed.2d 449 (1966). A landowner is restricted to a trespass action only where the deprivation of use and enjoyment of property results from the negligent acts of another party acting without the authority or direction of the entity clothed with the power of eminent domain. Deets.

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Bluebook (online)
651 A.2d 567, 1994 Pa. Commw. LEXIS 658, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elser-v-commonwealth-department-of-transportation-pacommwct-1994.