In re Condemnation by Pennsylvania Turnpike Commission

84 A.3d 768
CourtCommonwealth Court of Pennsylvania
DecidedJanuary 23, 2014
StatusPublished
Cited by7 cases

This text of 84 A.3d 768 (In re Condemnation by Pennsylvania Turnpike Commission) 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
In re Condemnation by Pennsylvania Turnpike Commission, 84 A.3d 768 (Pa. Ct. App. 2014).

Opinion

OPINION BY

Judge McCULLOUGH.

George W. Dukovich and Judith A. Du-kovich, husband and wife, (together, Con-demnees) appeal from two orders of the Court of Common Pleas of Allegheny County (trial court). The first order, dated July 25, 2012, overruled Condemnees’ preliminary objections to a declaration of taking filed by the Pennsylvania Turnpike Commission (Commission) and referred the matter to a Board of Viewers for a determination of damages. The second order, dated September 12, 2012, awarded possession of the property at issue to the Commission upon the deposit of estimated just compensation in the amount of $10,700 into court, with such monies being held by the Allegheny County Department of Court Records until further order.

I. Facts and Procedural History

The underlying facts are not in dispute. Condemnees own nearly thirteen acres of property in Allegheny County (County) located at 4812 Middle Road, Allison Park, Hampton Township, Pennsylvania. Con-demnees’ property abuts portions of the mainline turnpike and Middle Road leading up to, but not abutting, the Middle Road Bridge. Middle Road is owned by the County. The Commission is in the process of a substantial turnpike reconstruction project in this area. The Commission plans to demolish the Middle Road Bridge and rebuild it at a higher elevation in order to comply with federal safety standards as it reconstructs the turnpike below.1 Rebuilding the bridge at a higher elevation will require a realignment of Middle Road near the bridge, raising the surface of the road itself seven and a half feet at the edge of Condemnees’ property to meet the higher bridge. The raising of Middle Road will also require additional lateral and vertical support for the roadway along Condemnees’ property.

On September 28, 2011, the Commission filed a declaration of taking with respect to the following portions of Condemnees’ property:

0.300 acre in fee as required right-of-way for limited access, 0.265 acre in fee as required right-of-way for Middle Road (C-2309/02), 0.005 acre in ease[771]*771ment as required substitute right-of-way for Duquesne Light, and 0.047 acre as temporary construction easement, a partial take.

(Reproduced Record (R.R.) at 25A.)2 The Commission offered Condemnees estimated just compensation in the amount of $10,700, without prejudice to Condemnees’ right to proceed to a final determination of just compensation. (Trial court op. at 2.) Condemnees refused that offer and filed preliminary objections.

Specifically, Condemnees raised the following objections: (1) the Commission’s taking was excessive, not required for the stated purpose in the declaration of taking, and involved Middle Road, a County road; (2) the Commission lacked appropriate approval from Hampton Township; (3) the Commission is attempting to condemn land along its right-of-way for no public purpose; (4) the Commission was attempting to take property on behalf of Allegheny County without the consent or authorization of the County; (5) the trial court lacked subject matter jurisdiction; and (6) the Commission exceeded its authority under law and acted contrary to the public health, welfare, and safety. (R.R. at 37A-38A.)

Condemnees subsequently filed a motion for summary judgment with respect to objections four and five, but the trial court denied the motion. The trial court conducted a hearing on July 19, 2012. George Dukovich testified that the area around the current bridge is basically flat, but that after the reconstruction, there will be a “huge mound” along the entire frontage of his property. (R.R. at 56A.) Dukovich stated that as a result of this “huge embankment,” he may not be able to divide his property into lots for his children in the future. (R.R. at 57A.) On cross-examination, Dukovich responded that he has not submitted a subdivision plan for his property, but that “it doesn’t stop [him] from what [his] dream is.” (R.R. at 59A.) Dukovich described this subdivision as one of the future “goals” for himself and his wife and the “easiest way to give [their] children property.” (R.R. at 60A.)

Mark Magalotti, a registered professional engineer with over thirty years of experience in transportation engineering, testified on behalf of Condemnees. Magalotti reviewed the plans for the bridge reconstruction submitted by the Commission. (R.R. at 61A.) Magalotti testified that the Commission plans refer to a three-to-one slope, or three feet of horizontal area for every one foot of vertical elevation, but that a two-to-one slope could be used which would lessen the impact on Con-demnees’ property. (R.R. at 62A.) Additionally, Magalotti stated that if the Commission opted for a bridge with a middle support, the height of the bridge could be reduced by four feet and the impact on adjacent roadways would be lessened. Id. Magalotti noted that, rather than taking the property in fee, the Commission could have obtained a slope easement. (R.R. at 63A.) On cross-examination, Magalotti conceded that he did not review the curvature of the turnpike itself in reviewing the Commission’s plans. (R.R. at 65A.) Ma-galotti acknowledged that he was unaware of any requirements relating to military vehicles. (R.R. at 66A.) Magalotti also acknowledged that construction of a middle support was discussed and rejected at a Commission meeting. (R.R. at 67A.)

John Schwab, a highway and transportation engineer, testified for the Commission. Schwab worked for McCormick Taylor, the primary designer for the project. [772]*772(R.R. at 69A.) Schwab testified that many-different designs were considered for the project. Id. Schwab stated that the area where the Middle Road Bridge crosses the turnpike is considered a grade separation, i.e., two roadways intersect at different grades. (R.R. at 70A.) Schwab noted that there is a sharp “S” curve in the turnpike in the area under the bridge. Id. Schwab also noted that federal highway requirements mandate a sixteen-foot vertical clearance above the finished grade. (R.R. at 71A.) Schwab testified that the Pennsylvania Department of Transportation design manual calls for a three-to-one slope off the shoulder of a collector road such as Middle Road, which he opined was safer than a two-to-one slope. (R.R. at 72A, 75A.) Schwab indicated that the use of a middle support for the bridge was discussed at several meetings and rejected due to the effect on the mainline turnpike, including the cost, and the difficulty in safely diverting traffic during its construction. (R.R. at 72A-73A.) On cross-examination, Schwab conceded that a slope easement would permit the construction to go forward and that a middle support/center pier might be possible. (R.R. at 76A.) On re-direct examination, Schwab indicated that a slope easement provides minimal rights and may present problems in the future if repairs or additional work is necessary. (R.R. at 78A.)

By order dated July 25, 2012, the trial court overruled Condemnees’ preliminary objections and referred the matter to the Board of Viewers for a determination of damages. Condemnees filed a timely appeal on August 20, 2012 (docketed at No. 1680 C.D. 2012). The Commission thereafter filed a petition to deposit estimated just compensation. By order dated September 12, 2012, the trial court granted the petition.

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84 A.3d 768, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-condemnation-by-pennsylvania-turnpike-commission-pacommwct-2014.