Harrington v. Commonwealth

792 A.2d 669, 2002 Pa. Commw. LEXIS 89
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 21, 2002
StatusPublished
Cited by3 cases

This text of 792 A.2d 669 (Harrington v. Commonwealth) 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
Harrington v. Commonwealth, 792 A.2d 669, 2002 Pa. Commw. LEXIS 89 (Pa. Ct. App. 2002).

Opinions

[671]*671JIULIANTE, Senior Judge.

The Department of Transportation (DOT) appeals from the March 24, 2000 order of the Court of Common Pleas of Chester County (trial court) that overruled DOT’s preliminary objections to Elizabeth Harrington’s (Harrington’s) petition for appointment of a board of viewers for a de facto taking under Section 502(e) of the Eminent Domain Code (Code).2 In this case, we revisit the issue of what constitutes a change of grade sufficient to allow an action for a de facto taking under Section 612 of the Code,3 taking into consideration the seminal case on this issue, Daw v. Department of Transportation, 768 A.2d 1207 (Pa.Cmwlth.2001). We affirm.

On June 10, 1960, Harrington and her husband purchased property located at 894 Horseshoe Pike, U.S. Route 822, East Brandywine Township, Chester County. Over the years, DOT has executed various contracts for work on Route 322, abutting and extending from the west property line to the east property line of Harrington’s property. The project at issue is DOT’s resurfacing of Route 322 between March and August of 1998.

On June 25, 1999, Harrington filed the petition at issue alleging that she has been substantially deprived of the use and enjoyment of her property due to DOT’s necessary repair, maintenance, construction, widening and excavation for the repair, regrading and widening of Route 322. Specifically, she alleged that she has suffered continuous flooding from the rain and water runoff, damage from the change of grade of the highway and permanent interference with any reasonable and safe access to her property. In addition, she averred that her home has sustained damage from snowplows and automobiles running into her home.

DOT filed preliminary objections and the trial court held an evidentiary hearing on February 28, 2000. Harrington testified in support of her petition and, in opposition, DOT presented the testimony of Sal Ah, a civil engineer, and Larry Hamilton, an assistant county maintenance manager.

Ultimately, the trial court concluded that the interruptions, interference and deprivation that Harrington has aheged are substantial and continuously impede the use and enjoyment of her property. It stated that this deprivation of property has resulted in a substantial decrease to the value of her property and that her persistent and relentless nightmare is the direct result of DOT’s actions. Specifically, the court stated:

The evidence shows that the repair, regrading and widening of the highway has caused such severe damage that Petitioner has been forced to leave her home on certain occasions. Despite her persistent complaints, she continues to incur damage from snowplows....
Further, Penn DOT raised the aforementioned highway Jp.5 inches which caused a vertical slope to Petitioner’s property 4 This raise in the highway causes continuous flooding. [672]*672PennDOT also paved the gravel shoulder of the highway which had, at one time, absorbed some of the water running down the aforementioned slope. As a result, Petitioner, who is an elderly and slight woman, has been forced to carry 30-40 pound sandbags to the edge of her property in order to deter some of the flooding. Furthermore, automobiles have run into her home due to the change in the profile of Route 322. These actions have interfered with a reasonable and safe access to Petitioner’s property.

(Trial Court’s Opinion at 3) (emphasis added) (footnote added).

Accordingly, the trial court found that there was a de facto taking. DOT’s timely appeal to this Court followed.

DOT states four issues for our review: 5 (1) whether Harrington proved a change of grade under Section 612 of the Code; (2) whether Harrington presented sufficient competent evidence to support the trial court’s finding that the grade of Route 322 had been changed; (3) whether Harrington’s alleged injuries are properly the subject of a negligence claim and not compensable under the Code; and (4) whether the trial court committed reversible error by making findings of fact not supported by the evidence of record.6

We note that Section 612 lists only three causes for which abutting property owners are allowed to recover consequential damages: “(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.” Daw, 768 A.2d at 1210 (citation omitted). Under Section 612,

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. 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 change caused the damages to landowner’s property.

Id. (citation omitted).

I

DOT argues that Harrington failed to prove a change of grade, pointing out that this Court in Daw held that the uniform resurfacing of a road in need of repair is normal maintenance work and does not qualify as a change of grade under Section 612. Thus, it argues that a change of grade must be a change in the degree of inclination and not merely a uniform change in height.

In the present case, DOT admits that it resurfaced the roadway and berm of Route 322 and that the result was a 2.5-inch increase in the elevation of the road. It contends, however, that the increase in elevation was uniform across the width of the road and that the slope of the roadway was unchanged by the resurfacing project. [673]*673Therefore, it alleges that the resurfacing did not constitute a change of grade under Daw.

With regard to the landowner’s burden to prove a change of grade, DOT notes that Harrington did not testify at all as to the elevation or inclination of the roadway, either before or after the 1998 resurfacing project. DOT, on the other hand, entered plans from 1957 and 1998 into evidence for comparison and introduced the testimony of a civil engineer to demonstrate that neither the grade nor the width had changed based on those plans.

Moreover, DOT argues that the trial court erred in relying upon the lay testimony of Harrington as a basis for its finding that the grade of Route 322 had been altered. It avers that this was a matter of competency of evidence as opposed to credibility and that expert testimony was necessary. It points out that although Harrington testified that the height of the road had been raised 4.5 inches, she never testified that she took measurements of this increase and, if so, where she measured. Thus, DOT argues that such testimony from a lay person was inadmissible and that the record is devoid of any evidence supporting a finding of a change of grade. See Tennis v. Fedor-wicz, 140 Pa.Cmwlth. 7, 592 A.2d 116 (1991) (expert testimony required where subject matter of inquiry involves special skills and training not common to the lay person.)

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Related

McDonald v. Redevelopment Authority of Allegheny County
952 A.2d 713 (Commonwealth Court of Pennsylvania, 2008)
Wyland v. Commonwealth, Department of Transportation
799 A.2d 954 (Commonwealth Court of Pennsylvania, 2002)
Harrington v. Commonwealth
792 A.2d 669 (Commonwealth Court of Pennsylvania, 2002)

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792 A.2d 669, 2002 Pa. Commw. LEXIS 89, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harrington-v-commonwealth-pacommwct-2002.