Opinion
September 10, 1986.
Submitted on briefs May 29, 1986, to Judges MacPHAIL, DOYLE and BARRY, sitting as a panel of three.
Appeal, No. 435 C.D. 1985, from the Order of the Court of Common Pleas of Delaware County, in case of Ronald F. Smoluk and Margaret V. Smoluk, his wife v. Commonwealth of Pennsylvania, Department of Transportation, No. 84-7370.
Petition for appointment of viewers filed in Court of Common Pleas of Delaware County. Declaration of taking filed by Department of Transportation. Preliminary objections filed by parties. De facto taking found. Preliminary objections of Department dismissed. Preliminary objections of condemnees sustained. Declaration of taking stricken from record. CATANIA, P.J. Department appealed to the Commonwealth Court of Pennsylvania. Appeal dismissed. Dismissal order vacated. Held: Reversed and remanded.
Martin Burman, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Henry G. Barr, General Counsel, for appellant.
Murray S. Eckell, with him, George D. Harwood, Eckell, Sparks, Levy, Auerbach Monte, for appellees.
The present appeal by the Pennsylvania Department of Transportation (Department) arises from the same fact situation as appears in Department of Transportation v. Smoluk, 100 Pa. Commw. 422, 514 A.2d 1000 (1986) (Smoluk I).
The trial court issued separate orders dismissing the Department's preliminary objections to the landowners' (Smoluks') petition alleging a de facto taking and sustaining the Smoluks' preliminary objections to the Department's declaration of taking. In Smoluk I we reversed the trial court's order dismissing the Department's preliminary objections, holding that the Smoluks had not proven that a de facto taking of their entire property had occurred. Although the Department also appealed the court's order sustaining the preliminary objections to its declaration of taking, this appeal was initially dismissed by this Court due to the Department's failure to file briefs, and the appeal could not therefore be consolidated with the appeal in Smoluk I. On April 11, 1986, this Court vacated the order dismissing the Department's appeal, and the matter was submitted to this Court on briefs.
The issues in this appeal are identical to those raised in Smoluk I, and our decision here is controlled by that case. The trial court sustained the preliminary objections to the Department's declaration of taking on the basis of its finding that a de facto taking had occurred. Since in Smoluk I we held that there was no de facto taking, we must reverse the trial court's order sustaining Smoluks' preliminary objections and remand the matter for such additional proceedings as are necessary.
ORDER
NOW, September 10, 1986, the Order of the Court of Common Pleas of Delaware County, No. 84-7370, dated January 22, 1985, is hereby reversed, and the matter remanded for further proceedings on the Department's declaration of taking as may be necessary.
Jurisdiction relinquished.