90 Pa. Commw. 342 | Pa. Commw. Ct. | 1985
Lead Opinion
Opinion by
Appellants appeal from the order of the Allegheny County Court of Common Pleas which sustained the preliminary objections of the Port Authority of Allegheny County (Port Authority) to Appellants’ petition for appointment of viewers filed under Section 502(e) of the Eminent Domain Code (Code).
to enter upon, use and occupy the streets, avenues and highways of the City of Pittsburg, for the purpose of erecting and maintaining poles or other supports, . . . and to place and maintain therein and thereon such wires, cables, tubes and other electrical devices and appliances as may be necessary. . . .
On August 7, 1981, the Port Authority excavated a portion of Liberty Avenue between Fifth and Sixth Avenues in connection with its construction of a light rail transit system in Pittsburgh. As a result of this excavation, telegraph and telephone cables owned by Appellants were removed.
On August 3, 1983, Appellants filed a petition for the appointment of viewers pursuant to Section 502 (e) of the Code
A hearing was held in the court of common pleas on December 9, 1983, at which time evidence was presented by both sides. After a consideration of the evidence, the court entered an order sustaining the preliminary objections and dismissing Appellants’ petition for appointment of viewers. Appellants appeal from that order.
Where the court sustains the preliminary objections, our Court’s scope of review is limited to determining whether there is competent evidence in the record to support the findings made or whether an error of law was committed. Petition of Ramsey, 31 Pa. Commonwealth Ct. 182, 375 A.2d 886 (1977). In light of this scope of review, we note that our present consideration of this appeal is somewhat hampered by the lack of formal findings by the trial court. From the transcript of the proceedings, however, we find that the trial judge made the following statement:
Holmes has the right to go into the street which has not been disturbed by the Port Authority.
Although formal findings would have been preferable, it is apparent that the trial court intended this statement to be its finding. For this reason we need not remand for findings, but shall consider this statement as the court’s finding for purposes of our review.
A de facto taking under Section 502(e) of the Code occurs whenever an entity clothed with the power of eminent domain substantially deprives an owner of the use and enjoyment of his property. McCracken v. City of Philadelphia, 69 Pa. Commonwealth Ct. 492,
In the present case it is undisputed that Appellants’ property interest is in the form of a right-of-way which -has been granted to them by the City of Pittsburgh. The -evidence indicates, and the court so found, that the Port Authority’s excavation did not deprive Appellants of this right-of-way. Indeed, attorney for Appellants admitted at trial that Appellants could legally return to the excavated area and reinstall the communication cables which had been removed.
In the present case, Appellants have admitted that their real property interest — the right-of-way — has not been taken. Thus, their remedy, if any, for the Port Authority’s removal and destruction of the communication cable lies not in Eminent Domain, but in an action in trespass.
For these reasons, we conclude that the court was correct in finding that there had been no compensable taking under the Code. Accordingly, we affirm the order of the court dismissing Appellants ’ petition for appointment of viewers.
Order
Now, July 9, 1985, the order of the Court of Common Pleas of Allegheny County, No. GD83-12556, dated December 12, 1983, is hereby affirmed.
Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 §1-502 (e).
The following colloquy took place between the court and attorney for Appellants:
Q: Mr. Kamin, are you going to tell this Court that Holmes — P.F.P., if they so choose to go right down to Sixth Avenue now that is now cemented over and start digging trenches to put in the eables or however they do it, who’s going to stop them?
A: I think the City of Pittsburgh would probably stop them at this point.
Q: We’re not talking about the City of Pittsburgh. We’re talking about, did they have the right to do it under Ordinance 135?
A: Assuming they could get the proper permits.
Q: We’re not talking about complying with construction permits and construction ordinances. We’re talking about the right to go into the street.
A: Since that ordinance remains in effect, yes.
Q: Then what have they lost? What they have lost is a cable which was in there?
A: That is correct.
Dissenting Opinion
I respectfully dissent because I believe that the preliminary objections should be overruled and that the petitioner should be allowed to show the extent of his damages, if any, in an eminent domain proceeding.
Under the common law, a public utility’s use of the municipal roadways was subject at all times to the paramount right of the municipality to control and regulate their use under the police power. Philadelphia Electric Co. v. Philadelphia, 301 Pa. 291, 152 A. 23 (1930). Consequently, a permit to use the streets had been characterized as defeasible, and subordinate to the police power. No vested rights are conferred. The utility had no compensable property interest associated with its use of the streets for its lines. With the termination of this license, the utility was left without any interest m the land of any kind and no compensable interest. Vermont Gas Systems v. City of Burlington, 130 Vt. 75, 286 A.2d 275 (1971); Delaware River Joint Commission Case, 342 Pa. 119, 19 A.2d 278 (1941) (superseded by statute as stated in Philadelphia v. Philadelphia Electric Co., 504 Pa. 312, 473 A.2d 997 (1984)); Bell Telephone Co. of Pennsylvania v. Public Utility Commission, 139 Pa. Superior Ct. 529, 12 A.2d 479 (1940). On this rationale, the appellee bases its contention that no compensation is required in eminent domain proceedings.
However, where legislative intent to effect a departure from a firmly established principle of law is expressed in clear and unequivocal language, such principle is regarded as changed. Philadelphia Suburban Water Co. v. Public Utility Commission, 168 Pa. Superior Ct. 360, 78 A.2d 46 (1951); Vermont Gas Systems.
The Urban Redevelopment Law, Act of May 24, 1945, P.L. 991, as amended, 35 P.-S. §§1701-1746.1, ex
Under Section 607 of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. §1-607, machinery, equipment and fixtures forming part of the real estate must be taken into consideration in determining damages. Since the Code did not provide the criteria for determining when machinery, equipment and fixtures become part of the real estate and when they are personal property, our supreme court fashioned what is known as the assembled economic unit doctrine. Singer v. Oil City Redevelopment Authority, 437 Pa. 55, 261 A.2d 594 (1970); Redevelopment Authority of Erie v. Pulakos, 17 Pa. Commonwealth Ct. 251, 330 A.2d 869 (1975). Under this doctrine, the Code views a taking of a commercial enterprise as an enforced relocation and, where equipment must be moved, the condemnee ordinarily is paid removal and installation costs only. However, that which is not removable without substantial injury, is compensable as part of the real estate for eminent domain purposes. Singer.
In conclusion, since the franchise is considered real estate for eminent domain purposes, substantial interference with the beneficial use of this real estate triggers the Fifth Amendment to the United States Constitution and compensation must b'e awarded. The fact that the appellant may be able to continue to use the street in some other manner may affect the extent of the damages, but not the right to compensation.
