Opinion
Argued April 8, 1976
May 19, 1976.
Eminent domain — De facto taking — Preliminary objections — Evidentiary record.
1. When preliminary objections are directed to a petition for appointment of viewers challenging the assertion that a de facto taking has occurred, the court must make an evidentiary record and resolve such issue rather than submit it to viewers. [525]
Judge KRAMER did not participate in this decision.
Argued April 8, 1976, before Judges CRUMLISH, JR., MENCER and ROGERS, sitting as a panel of three.
Appeal, No. 1380 C.D. 1974, from the Order of the Court of Common Pleas of Philadelphia County in case of Russell P. Stein, Trustee v. Commonwealth of Pennsylvania, Department of Transportation, No. 1938 March Term, 1973.
Petition for appointment of Board of View in the Court of Common Pleas of Philadelphia. Condemnee filed preliminary objections. Preliminary objections dismissed and board of view appointed. Condemnee appealed to the Commonwealth Court of Pennsylvania. Held: Reversed and remanded.
Roger T. Shoop, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellant.
Edward Jay Weiss, for appellee.
The procedural question raised by this appeal has been before this Court on innumerable occasions. We have held that the trial court must make an evidentiary record and resolve the issue of a de facto taking raised by preliminary objections, and not submit the issue to viewers. Petition of Ramsey, 20 Pa. Commw. 207, 342 A.2d 124 (1975); Nixon Hotel, Inc. v. Redevelopment Authority of Butler, 11 Pa. Commw. 519, 315 A.2d 366 (1974); Jacobs v. Nether Providence Township, 6 Pa. Commw. 594, 297 A.2d 550 (1972).
Since we have neither the benefit of a trial court evidentiary record nor an opinion, we must remand this matter to the Court of Common Pleas of Philadelphia County for reconsideration consistent with this opinion.
Reversed and remanded.