Truck Terminal Realty Co. v. Commonwealth

403 A.2d 986, 486 Pa. 16, 1979 Pa. LEXIS 664
CourtSupreme Court of Pennsylvania
DecidedJuly 11, 1979
Docket209
StatusPublished
Cited by35 cases

This text of 403 A.2d 986 (Truck Terminal Realty Co. v. Commonwealth) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Truck Terminal Realty Co. v. Commonwealth, 403 A.2d 986, 486 Pa. 16, 1979 Pa. LEXIS 664 (Pa. 1979).

Opinions

OPINION

NIX, Justice.

The facts presented in this appeal are undisputed.- The appellant owns a parcel of land in Harmar and Indiana Townships, Allegheny County which is used as a truck terminal. The property does not abut on any public thoroughfare, except the Pennsylvania Turnpike, to which there is no access along appellant’s frontage. The only access to this parcel is by means of a right-of-way over abutting lands to Legislative Route 679. The Commonwealth filed a declaration of taking by which it condemned a portion of appellant’s right-of-way and raised the grade of Route 679. It is conceded that appellant is entitled to be compensated for the damages resulting from the* changing of the grade of the road. The dispute arises because appellant does not assert as its principal damage the taking of a part of the right-of-way or the elevation of the road grade. To the contrary, appellant seeks compensation for the impediment to its access during the construction period. As a result of the construction, access to the portion of Route 679 south of appellant’s right-of-way, required vehicles entering and leaving appellant’s parcel to travel 14 miles farther in each direction to reach the main highway system. It is asserted that this temporary inconvenience imposed upon appellant caused additional out-of-pocket costs in the form of salaries, gas, oil and additional wear and tear on the vehicles involved.

[19]*19Appellant contends that section 606 of the Eminent Domain Code1 authorized as compensable damages in connection with the taking its out-of-pocket expenses resulting from the closure of Route 679 during the year-long course of construction activity.2 The appellant urged the Court of Common Pleas of Allegheny County to construe section 606 of the Code, when read in conjunction with the pertinent part of section 602 of the Code,3 to allow the Court of Common Pleas to take into account, in appraising the fair market value of the land after a partial taking, evidence concerning the diminution in its fair market value due to the temporary loss of direct access to Route 679. The Court of Common Pleas accepted appellant’s interpretation of the statute, modified the Board of Viewers’ report in the instant case, and ordered that, at trial, the impact upon appellant’s property of the physical closing of Route 679 during the construction period should be an element to be considered, together with all other proper elements, in determining the [20]*20fair market value of appellant’s property immediately after the condemnation. The Commonwealth Court reversed the order of the Court of Common Pleas insofar as it provided that the impact of the highway’s closing during construction was to be considered a factor in determining appellant’s damages.

The question presented for decision is, therefore, whether the language of the statute warrants compensation for temporary deprivation of right of access to a road necessitated by public construction, changing its grade where a partial taking has been effectuated. Under established Pennsylvania law, the accrual of damages for loss of access resulting from a change in the grade of a public street or road does not constitute a taking of property within the meaning of the Constitution absent an express statutory enactment providing for the payment of such damages. McGarrity v. Commonwealth, 311 Pa. 436, 439, 166 A. 895, 896 (1933). This common law rule,4 to which Pennsylvania adheres, has been held compatible with the dictates of the Federal Constitution. Delaware River Commission v. Colburn, 310 U.S. 419, 60 S.Ct. 1039, 84 L.Ed. 1287 (1940). The Eminent Domain Code expressly authorizes the recovery of consequential damages, whether or not any property is taken, when there is a “permanent interference 'with access thereto.” Eminent Domain Code, Section 612 (emphasis added).5 In interpreting and applying the “before and-after” measure of damages now codified in section 602 of the Code, Pennsylvania courts required a showing of a permanent injury or deprivation of property rights to establish entitlement to damages in an eminent domain proceeding. Perla v. Commonwealth, 392 Pa. 96, 139 A.2d 673 (1958); [21]*21Cox v. City of Philadelphia, 107 Pa.Super. 455, 164 A. 95 (1933). As the Court once observed in a comprehensive discussion of early Pennsylvania authorities on the application of the “before and after” rule:

The cases almost uniformly hold that damages cannot be recovered for inconvenience in the transition of business . caused by the work of making a public improvement; that this temporary inconvenience, and all losses therefrom, must be suffered, for the law permits a recovery only of the permanent depreciation in the value of property taken or injured . . . such depreciation to be judged by the effect of the improvement when completed. Iron City Auto Co. v. Pittsburgh, 253 Pa. 478 at 493, 98 A. 679 at 684 (1916).

Accord 2 Nichols on Eminent Domain, § 36.11 n.6.

Appellant contends that this settled rule of the incompensability of temporary interference with rights of access has been changed relying upon an excerpt of the Comment to section 606 which reads as follows:

In determining the fair market value of the remaining property, consideration should be given to the necessary time discount, inconvenience and other effects of the construction period, which might materially affect the price which the condemnee would receive if he were to sell the remaining property to a third party immediately after the day of condemnation, but before completion of the improvement. .

This language, which is far from being direct authority for the proposition advanced, must be considered in light of the following which appears thereafter in the same comment:

. It is also the purpose of this section to provide, in accordance with existing law, that general benefits and damages which accrue to the community as a whole are not to be considered in arriving at the after value. Only special, particular and direct benefits and damages to the remaining property may be considered in arriving at the after value. .

[22]*22Thus, even assuming arguendo that the words of the statute as supplemented by a comment whose soundness has been questioned6 support appellant’s interpretation, the question remains whether appellant has suffered special, particular and direct damages resulting from temporary loss of direct access to Route 679 as differentiated from the general damages which “accrue to the community as a whole” as a result of the construction. Pennsylvania RR Co. v. Marchant, 119 Pa. 541, 13 A. 690 (1888); Pennsylvania RR Co. v. Lippincott, 116 Pa. 472, 9 A. 871 (1887).

Since there was no cause of action at common law for the temporary deprivation of access caused by the work of making a public improvement, such temporary inconvenience not being deemed to constitute a “taking” of a property right, Iron City Auto Co. v. Pittsburgh, supra; Pennsylvania RR Co. v. Marchant, supra,

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Bluebook (online)
403 A.2d 986, 486 Pa. 16, 1979 Pa. LEXIS 664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/truck-terminal-realty-co-v-commonwealth-pa-1979.