Opinion
Argued May 7, 1982
July 1, 1982.
Eminent domain — Compensable injury — Change of grade — Variation in plans.
1. A petition for appointment of viewers seeking compensatory damages is appropriate when a condemning entity alters its original plan resulting in a grade change and a fill operation causing damage from excessive drainage upon the property of petitioner. [275-6]
Argued May 7, 1982, before Judges BLATT, WILLIAMS, JR. and CRAIG, sitting as a panel of three.
Appeal, No. 1168 C.D. 1980, from the Order of the Court of Common Pleas of Allegheny County in case of Frank D. Gardone and Audrey Gardone, his wife v. Commonwealth of Pennsylvania, Department of Transportation, No. G.D. 75-482.
Petition to the Court of Common Pleas of Allegheny County for appointment of viewers. Respondent filed preliminary objections. Preliminary objections dismissed. SCHEIB, J. Respondent appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Jeffrey L. Giltenboth, Special Assistant Attorney General, with him Ward T. Williams, Chief Counsel, Harvey Bartle, III, Acting Attorney General, for appellant.
Joseph M. Ludwig, Ludwig Achman, for appellee.
The Commonwealth of Pennsylvania, Department of Transportation (PennDOT), appeals the common pleas court's dismissal of its preliminary objections to a petition filed by Frank and Audrey Gardone (landowners) for the appointment of viewers under Section 612 of the Eminent Domain Code (Code), to assess damages for drainage injury resulting from a change of grade in the relocation of Campbell's Run Road, Allegheny County.
Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P. S. § 1-612 reads:
Consequential damages
All condemnors, including the Commonwealth of Pennsylvania, shall be liable for damages to property abutting the area of an improvement resulting from change of grade of a road or highway, permanent interference with access thereto, or injury to surface support, whether or not any property is taken.
The landowner testified, as did a witness for PennDOT, that the landowners' predecessors in title — the Staskos — received compensation after the former Department of Highways filed the declaration of taking at the commencement of the project. The landowners, who then owned a bar next door to the subject property, purchased the land from the Staskos about fourteen months later.
PennDOT first claims that the landowner is barred from recovering consequential damages because of the previous payment to the Staskos. The record, however, contains no direct evidence concerning the details of the settlement with the Staskos as to the property here involved. Therefore, we are precluded from any determination as to the scope of the Stasko payment and its effect upon the landowners' present claim for damages.
The record does contain a copy of a "Settlement Agreement (consequential Damages)" between PennDOT and the Gardones for the property next door to the parcel now at issue. The trial judge apparently was considering this document when he wrote "[m]oreover, the prior condemnation settlement should not deprive the Gardones of their right to additional compensation since the settlement did not contemplate further change of the right-of-way and the grade of Campbell's Run Road."
PennDOT also challenges the common pleas court's conclusion that the landowners were entitled to compensation because PennDOT's work varied from the declaration of taking.
The common pleas judge found that PennDOT "changed the plans as originally contemplated thereby altering the grade of Campbell's Run Road along with the adjacent right-of-way," and that "fill was placed on the right-of-way North of the Gardone property . . . with PennDOT's knowledge and consent . . . [which] benefited PennDOT by giving lateral support and uniform fill to the area adjacent to the roadway." The landowners contended that the large volume of fill was responsible for the excessive drainage, putting their house "in a hole."
PennDOT witnesses admitted that the fill was not contemplated in the original plans, but claim that a neighbor was responsible for placing it along PennDOT's right-of-way; they stated that permission was usually required to take such action, but that documentation of authorization could not be located. In addition, PennDOT claims that the change in grade, as filed, would have resulted in a more severe alteration of the land.
Mr. Rudolph Melini testified:
Q. It was your right of way?
A. Well, I don't know how he was able to come in and dump the dirt into our right-of-way. To this day I can't find a letter authorizing him to dump it. All right? I investigated that out in the field and I think Mr. Gardone can verify that.
. . . .
A. Actually, by rights, for him to dump the dirt and the dirt into the right-of-way — okay, he could have dumped the dirt — well, let me clarify it. Somewhere along the line he had to get some kind of approval to dump the dirt onto our shoulder edge. I couldn't find any letter.
We must agree with the lower court's reasoning that PennDOT's complicity in the alterations, coupled with the obvious effect of the grade change and fill operation on the landowners' enjoyment and use of their property, clearly warrant a conclusion that the landowners have sustained a compensable injury.
A careful review of the record convinces us that substantial evidence exists to support the court's dismissal of PennDOT's preliminary objections. Pennsylvania Department of Transportation v. Pastuszek, 55 Pa. Commw. 138, 422 A.2d 1223 (1980). Accordingly, we affirm.
ORDER
NOW, July 1, 1982, the order of the Court of Common Pleas of Allegheny County dated April 18, 1980, No. G.D. 75-482, dismissing the preliminary objections of the Commonwealth of Pennsylvania, Department of Transportation, is affirmed.