28 Pa. Commw. 396 | Pa. Commw. Ct. | 1977
Opinion by
Perfection Plastics, Inc. (Plastics) petitioned the court below for the Appointment of a Board of View pursuant to the Eminent Domain Code
Plastics was the lessee of property at 4080-R Prank-ford Avenue, Philadelphia, where it manufactured advertising products. Late in 1970, the Commonwealth’s Department of Transportation (PennDOT), announced plans to construct Legislative Route 1078, known as the Pulaski Highway, in the vicinity of the Plastics’ plant. Bonds for the funding of the project were authorized, but formal acquisition of property was delayed because the Governor had not yet signed the necessary right-of-way plans. Soon after the public announcement of the construction plans, Plastics had been informed by a PennDOT representative that the proposed highway could involve the building here concerned, and, sometime in March of 1971, Plastics
In its memorandum opinion, the lower court correctly observed that preliminary objections to a petition for the appointment of viewers serve a broader purpose than preliminary objections in other cases because they are the means to challenge the legal sufficiency of the petition and to resolve all threshold legal issues. City of Philadelphia v. Airportels, Inc., 14 Pa. Commonwealth Ct. 617, 322 A.2d 727 (1974). The court, not the board of view, must determine the legal sufficiency of the claim. Jacobs v. Nether Providence Township, 6 Pa. Commonwealth Ct. 594, 297 A.2d 550 (1972).
Plastics has conceded that there has been no formal condemnation of the Frankford Avenue property but argues that the actions and inactions of PennDOT resulted here in a de facto taking. In order for a condemnee to prove that a de facto taking has occurred, he must show exceptional circumstances which have substantially deprived him of the use and enjoyment of his property. Petition of Cornell Industrial Elec
In the case of Hazleton Redevelopment Authority v. Hudock, 2 Pa. Commonwealth Ct. 670, 281 A.2d 914 (1971), this Court held that approval and funding of a project by a condemning authority, issuance, of notices to and negotiations with property owners, and actual acquisition of some properties were not sufficient to establish a de facto taking. Only where it has been shown that such actions have had some significant impact on the use of the property has a de facto taking been recognized. See Conroy-Prugh Glass Co. v. Commonwealth, 456 Pa. 384, 321 A.2d 598 (1974), where a landowner could no longer obtain tenants because of publicity about the imminence of condemnation.
It may be true that Plastics was in a financially dangerous situation which required an expansion of its operations and that it was economically unfeasible to expand at its then location in light of the probable condemnation of the property, but, where a property owner suspends the construction of improvements, even at the advice of the condemning authority, it has been clearly held that no de facto taking has occurred. County of Allegheny v. The Church of Jesus Christ, 14 Pa. Commonwealth Ct. 510, 322 A.2d 803 (1974).
Plastics could have remained as a tenant in the property here concerned for as long as it could continue to negotiate a lease with the owner, and, if a condemnation meanwhile occurred Plastics would then have been compensated for the loss of its leasehold
We believe that, absent a showing of substantial interference with Plastics’ use of the property, the lower court properly concluded here that there was no de facto taking.
Alternatively, Plastics argues that even if a de facto taking did not occur, it was forced to relocate with considerable expense. Consequently, it claims that it should be entitled to damages as a “displaced person.” Section 201 of the Code, 26 P.S. §1-201(8), defines a “displaced person” as
any condemnee or other person not illegally in occupancy of real property who moves or moves his personal property as a result of the acquisition for a program or project of such real property, in whole or in part, or as the result of written notice from the acquiring agency of intent to acquire or order to vacate such real property; and solely for the purpose, of subsections (a) and (b)(1) and (b)(4) of section 601-A, as a result of such acquisition or written notice of intent to acquire or order to vacate other real property on which such person conducts a business or farm operation. (Emphasis added.)
We also agree with the lower court that as a matter of law Plasties has failed to state a cause of action for damages compensable under the Code. We, therefore, affirm the order which sustained preliminary objections and dismissed Plasties’ petition for the appointment of a board of view.
Order
And Now, this 31st day of January, 1977, the order of the Court of Common Pleas of Philadelphia County sustaining the preliminary objections of the Commonwealth of Pennsylvania and dismissing the appellant’s Petition for the Appointment of a Board of View is hereby affirmed.
Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. §1-101 et seq. Section 502(e), 26 P.S. §l-502(e), permits the filing of a Petition for Appointment of Viewers when “there has been a compensable injury suffered and no declaration of taking therefor has been filed.”