555 A.2d 312 | Pa. Commw. Ct. | 1989
Opinion by
Appellant Ruth lies (lies) appeals from the order of the Court of Common Pleas of Montour County which sustained preliminary objections raised by Appellees Borough of Danville (Borough) and the Pennsylvania Department of Transportation (DOT) to lies’ petition for appointment of viewers pursuant to Section 502(e) of the
lies, a Borough property owner, petitioned the trial court for appointment of viewers, seeking just compensation for damages allegedly caused by Appellees’ actions, lies contended that subsurface vehicular vibrations generated by a substantial increase in traffic travelling through the intersection adjacent to her premises
Preliminary objections to lies’ petition were filed by DOT and adopted by the Borough, alleging non-occurrence of a de facto taking. The trial court, after evidentiary hearing, found that lies failed to establish that Appellees’ actions caused exceptional circumstances sufficient to constitute a de facto taking, and accordingly, sustained Appellees’ preliminary objections. Hence, this appeal.
lies contends that the trial court failed to comprehend the evidence and that the trial court’s findings were
Yotter performed a seismograph analysis
Casner, on the other hand, testified that he leased a portion of the subject premises from lies’ predecessor-in-interest prior to the actions undertaken by Appellees. He further testified that some of the structural damage to the subject premises, which lies attributes to increased traffic and concomitant vehicular vibrations, existed during the period of his tenancy. N.T., pp. 145-148.
The testimony upon which the trial court based its determination clearly constitutes competent evidence to support the trial court’s finding that lies failed to establish a causal nexus between the structural damage to her residence and the vehicular vibrations alleged to have resulted from Appellees’ actions.
Order
And Now, this 13th day of March, 1989, the decision of the Court of Common Pleas of Montour County is affirmed.
Judge MACPHAIL did not participate in the decision in this case.
Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. §l-502(e).
Both parties stipulated that lies’ residence was at least 100 years old. N.T., p. 144.
This Court’s scope of review, where, as here, the trial court sustained preliminary objections to a petition for appointment of viewers, is limited to determining whether the findings are supported by competent evidence or an error of law has been committed. Merrick Appeal, 68 Pa. Commonwealth Ct. 506, 449 A.2d 820 (1982).
A seismograph is a monitoring device used to measure and record vibration^. The data is then' analyzed to determine the vibrations’ potential for damage. N.T., p. 115.
Particle velocity is the accepted standard for measuring the strengths of vibrations and their potential for structural damage. N.T., p. 126.
lies asserts that Yotter did not perform the seismograph analysis during peak traffic hours and failed to obtain particle velocity readings from passing coal trucks which allegedly generate the strongest vibrations. This assertion relates to the weight to be accorded the evidence, such determination being for the trial court as fact-finder and not this Court. Moreover, the eight seismograph readings recorded by Yotter primarily tracked movement of heavier vehicles travelling through the subject intersection. Defendant’s Exhibit D3. lies further asserts that the seismograph readings are inaccurate and unreliable since the seismograph was not placed in lies’ basement. Such placement, however, may have decreased the particle velocity readings depending upon whether lies’ basement was concrete or earth. Nonetheless, Yotter’s vibration study was