In re Condemnation by the Pennsylvania Tpk. Comm'n, PICS Case No. 14-14-0131 (Pa. Commw. Jan. 23, 2014) McCullough, J. (19 pages).

COMMONWEALTH COURT

The Legal Intelligencer

LAND USE AND PLANNING

Writ of Possession • Excess Taking • Writ of Possession

In re Condemnation by the Pennsylvania Tpk. Comm'n, PICS Case No. 14-14-0131 (Pa. Commw. Jan. 23, 2014) McCullough, J. (19 pages).

Condemnees George and Judith Dukovich appealed from orders of the Court of Common Pleas of Allegheny County which overruled condemnees' objections to a declaration of taking filed by the Pennsylvania Turnpike Commission and gave the commission possession of the property upon deposit of just compensation in the amount of $10,700. The commonwealth court upheld the determination of the court of common pleas.

The Dukovich property abutted portions of the mainline turnpike and Middle Road, leading up to but not abutting, the Middle Road Bridge. The commission was in the process of a substantial turnpike reconstruction, involving demolition of the Middle Road Bridge and replacement of the bridge at a higher elevation. Rebuilding the bridge at a higher elevation required a realignment of the road, which called for additional lateral and vertical support of the roadway along the Dukovich property.

Condemnees argued that the county council failed to pass a resolution authorizing the commission to take land for the expansion of a county road. The court rejected this argument, finding that section 6 of the Pennsylvania Turnpike Commission Act authorizes such a taking. Express approval by the county council was not required. Furthermore, the commission complied with provisions of the county code by securing the necessary approvals for changes in the lines and grades associated with the construction of the new bridge.

The court also disagreed with condemnees' claim that the taking of the property in fee simple was excessive. Testimony at the hearing indicated that an easement might be sufficient for building the bridge, but having only an easement would likely not be adequate for purposes of maintenance. To provide the commission with proper access for maintenance, it was advantageous to own the land in fee simple to avoid recurrent disputes with landowners. Condemnees have a heavy burden to establish fraud or bad faith, and the court concluded condemnees had not met their burden to show the taking in fee simple was excessive.

The trial court granted a writ of possession, allowing the commission access to the property while condemnees' objections were pending. The court concluded condemnees had failed to meet their burden of establishing the commission acted fraudulently or in bad faith and affirmed the trial court's writ allowing the commission to have possession of the property.