Kahn v. PennDOT

10 Pa. D. & C.4th 572, 1991 Pa. Dist. & Cnty. Dec. LEXIS 294
CourtPennsylvania Court of Common Pleas, Bucks County
DecidedApril 18, 1991
Docketno. 90-2050-18-6
StatusPublished

This text of 10 Pa. D. & C.4th 572 (Kahn v. PennDOT) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Bucks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kahn v. PennDOT, 10 Pa. D. & C.4th 572, 1991 Pa. Dist. & Cnty. Dec. LEXIS 294 (Pa. Super. Ct. 1991).

Opinion

RUFE, J.,

Defendant in this case, the Commonwealth of Pennsylvania, Department of Transportation, filed preliminary objections in the nature of a motion to quash an invalid petition for viewers, motion to quash for lack of specificity and in the nature of a demúrrer. The undersigned, by order dated January 9, 1991, denied said preliminary objections of the Commonwealth. Defendant has appealed in accordance with Pennsylvania case law, which holds that an order dismissing preliminary objections to petition for appointment of viewers alleging a de facto taking is a final and appealable order. City of Pittsburgh v. Haffner, 80 Pa. Commw. 53, 55 n.2, 471 A.2d 116, 117 n.2 (1984).

Where preliminary objections are filed with respect to a petition alleging a de facto taking of property, the court must determine as a threshold legal issue whether a sufficient cause of action has been stated based upon such a de facto taking. Mountain Area Joint Sanitary Authority v. St. Jude Church, 73 Pa. Commw. 185, 188, 457 A.2d 1024, 1025-6 (1983). If the averments in a petition, taken as true, are sufficient to state a cause of action for a de facto taking, a court may resolve this threshold legal issue without taking additional evidence. Jennings v. Pennsylvania Department of Transportation, 38 Pa. Commw. 206, 209, 395 A.2d 582, 582 (1978); see also, In re Petition of Ramsey, 20 Pa. Commw. 207, [574]*574210, 342 A.2d 124, 126 (1975). It is only in cases where it is unclear as to whether the petition has stated a cause of action that the trial court must take evidence by deposition or otherwise in order to make a judicial determination. Stein v. City of Philadelphia, 125 Pa. Commw. 225, 230, 557 A.2d 1137, 1140 (1989). We hold that the averments of the petition, if taken as true, sufficiently set forth a cause of action and therefore a hearing for the purpose of taking additional evidence is not required.

In so holding, we first analyze the facts of this case and make note of several case law rulings decided under the Eminent Domain Code. Plaintiffs in this case, George and Sylvia Kahn a/k/a George and Sylvia Kohen, are the record owners of the real estate located on the northeast corner of the intersection of County Line Road and Maple Avenue in Line Lexington, New Britain Township, Bucks County, Pennsylvania. The property is leased by Glenlar Corporation, which operates a restaurant/ tavern on the property known as Suzy’s Lounge. Beginning in late 1988, defendant undertook construction of vehicular traffic pattern changes on County Line Road and Route 309 directly in front of the plaintiffs’ property. County Line Road, which had previously been a through road onto Route 309, was closed off to a dead end with a mound of dirt, thereby changing the grade and drainage of said road. Route 309 was widened and elevated on its eastern side, changing the grade of said road as well as changing the drainage onto County Line Road and onto plaintiffs’ property. Plaintiffs allege that the change in the grade of said roadways has increased the drainage and water run-off onto their property. As a result, plaintiffs claim that a dangerous condition has been created for the patrons in the [575]*575parking lot, as well as damage to the surface of the lot, particularly due to freezing in winter months. Plaintiffs also contend that by closing off County Line Road where it previously intersected with Route 309, the Commonwealth has permanently interfered with their property by blocking off the most feasible means of access. In addition, plaintiffs assert that for various periods of time during the construction, defendant completely blocked off all means of ingress and egress from their property to the adjoining roadways. Based on these allegations, plaintiffs petitioned for the appointment of a board of viewers pursuant to 26 P.S. §l-502(e) (1969) to ascertain just compensation for the damages caused to the aforesaid property.

In determining the existence of a de facto taking, the court must first determine whether the entity charged with the taking was clothed with the power of eminent domain. McGaffic v. Redevelopment Authority of New Castle, 120 Pa. Commw. 199, 204, 548 A.2d 653, 655 (1988). It is undisputed that defendant, the Pennsylvania Department of Transportation, was clothed with such power. Secondly, the court must decide whether the entity has substantially deprived the owner of the use and enjoyment of his or her property. Id. The burden is on the property owner to show that exceptional circumstances have been created as a direct and necessary consequence of the entity’s actions which have substantially deprived him of the use of his property. Id. The court must balance the interests of the property owner against the need for planning agencies to maintain planning flexibility. Id. at 205, 548 A.2d at 656. In addition, each case must be examined on its own facts in determining what constitutes a de facto taking. Id. Upon a review of the facts alleged in this case, we find that plaintiffs have met [576]*576their burden and have stated a cause of action for a de facto taking. In so holding, we accept plaintiffs’ allegation that the blocking off of County Line Road’s intersection with Route 309 has blocked off the most feasible means of access to its property. Plaintiffs’ contention is that many potential patrons-will be deterred from coming onto the property because it will be more difficult to gain access from the heavily travelled state road. Moreover, the fact that the Commonwealth has changed the grading of Route 309 and County Line Road in a way which causes substantial drainage onto the parking of Suzy’s Lounge is further evidence of a de facto taking, if proven.

We note that the Pennsylvania Supreme Court has held that highway route barriers may become so circuitous as to represent an unreasonable and permanent interference with access to one’s property despite the fact that access was not totally deprived. Commonwealth v. Appointment of Viewers to Assess Damages to Property of McCrady, 399 Pa. 586, 596, 160 A.2d 715, 720 (1960). In addition, we find that Capece v. City of Philadelphia, 123 Pa. Commw. 86, 552 A.2d 1147 (1989), is distinguishable because the petitioners in that case, in alleging the change of grading to an abutting street, did not allege interference with access or injury to surface support. Id. at 91, 552 A.2d at 1149. For that reason, the court found that the petitioners had not made a showing of a de facto taking under the Eminent Domain Code. Id. In the. case at bar, however, plaintiffs have alleged both denial of access as well as surface damage as a result of the grading. Therefore, defendant’s petition to quash invalid petition is denied.

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Related

Capece v. City of Philadelphia
552 A.2d 1147 (Commonwealth Court of Pennsylvania, 1989)
McGaffic v. RED. AUTH., CITY OF N. CASTLE
548 A.2d 653 (Commonwealth Court of Pennsylvania, 1988)
County of Allegheny v. Commonwealth
490 A.2d 402 (Supreme Court of Pennsylvania, 1985)
McCrady Case
160 A.2d 715 (Supreme Court of Pennsylvania, 1960)
Stein v. City of Philadelphia
557 A.2d 1137 (Commonwealth Court of Pennsylvania, 1989)
In re Ramsey
342 A.2d 124 (Commonwealth Court of Pennsylvania, 1975)
Jennings v. Commonwealth
395 A.2d 582 (Commonwealth Court of Pennsylvania, 1978)
Mountaintop Area Joint Sanitary Authority v. St. Jude Church
457 A.2d 1024 (Commonwealth Court of Pennsylvania, 1983)
City of Pittsburgh v. Haffner
471 A.2d 116 (Commonwealth Court of Pennsylvania, 1984)

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Bluebook (online)
10 Pa. D. & C.4th 572, 1991 Pa. Dist. & Cnty. Dec. LEXIS 294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kahn-v-penndot-pactcomplbucks-1991.