Opposition Brief — Kastner v. Pennsylvania Department of Transportation

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PREMISES OF RICHARD KASTNER, t/a LIB-

ERTY BELL DISCOUNT and CHARLES POD-

HAIZER, t/a BIG C DISCOUNT DEPART-

MENT STORE, Tenant, DESCRIBED IN DEED

BOOK 1725, Page 231, Petitioners

v.

COMMONWEALTH OF PENNSYLVANIA

DEPARTMENT OF TRANSPORTATION,

Respondents

In Re: Condemnation by the Commonwealth of

Pennsylvania, Department of Transportation

(Formerly Department of Highways), for

Right-of-Way for Legislative Route 252, Sec.

10-A, in Bensalem Township, Bucks County,

Pennsylvania.

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI TO THE SUPREME

COURT OF PENNSYLVANIA

GEORGE BRISTOL

Assistant Attorney General

RoBert W. CUNLIFFE

Deputy Attorney General

—Chief Counsel

ISRAEL PACKEL

Aficrney General

Attorneys for Common-

wealth

Commonwealth of Pennsylvania

Department of Transportation

Legal Bureau

Harrisburg, Pennsylvania 17120

INDEX TO BRIEF

PAGE

os senses cunpuall TEEPE OCCT CRT tae 1

Jurisdiction and Question Presented ........_.. 2

Constitutional Provisions Involved ............ 3

Counter-Statement of the Case ................ 3

Argument:

Where the Commonwealth of Pennsylvania,

Department of Transportation has construct.

ed a new highway (New Street Road),

where the original highway is barricaded at

the intersection of Old Street Road and U.S.

1, forming a cul-de-sac, where no land has

been taken, where the property in question

does not abut the new improvement, and

where those utilizing the subject property

need — only a short yr highe order

to reac general system of highways, a

decision of the Commonwealth Court of

Pennsylvania denying liability, does not ef-

fect a denial of just compensation under the

Fifth Amendment, or a denial of due process

under the Fourteenth Amendment of the

United States Constitution ............. 8

Conclusion

TABLE OF CITATIONS

CASEs:

Berlowitz v. State Department of Roads, 180 Neb.

164, 141 N.W. 2d 764 GOOD dcw coer.

i

Breidert v. Southern Pacific Company, 39 Cal. Rptr.

903, 61 Cal. 2d 659, 394 P. 2d 719 (1964) .. . 12

Brook v. State Highway Commission, 195 =.

361, 404 P. 2d 934 (1965) .........0.... 13

Chicago B & Q R Company v. Chicago, 166 U‘S.

EME ice Bora 18

Creasy v. Lawler, 8 Pa. D. & C. 2d 535 (1956) .. 16

Creasy v. Stevens, 160 Fed. Supp. 404 (1958) .. 16

Duncan v. Louisiana, 391 U.S. 145 (1968) .... 18

Fecher v. Allegheny County, 313 Pa. 191, 169 A.

Oe SE ee eNe ka kb deas Sako ken enneee 11,12

Griggs v. Allegheny County, 269 U.S. 84 (1962) 19

Hession Condemnation Case, 430 Pa. 273, 242 A.

2d 432 (1968), cert. denied 393 U.S. 1049

12, 15, 17

In re: Melon Street, 182 Pa. 397, 38 A. 482

Re Sie Rees ro ae tre ed 11,13

James v. State, 88 Idaho 397 P. 2d 766 (1964) .. 13

Martin v. Creasy, 360 U.S. 219 (1959) ....15, 16,17

Mitchell Condemnation Case, 209 Pa. Superior Ct.

ye » eS Fist. os eee 12

Pennsylvania Coal Company v. Mahon, 260 USS.

Se: GE Aix ordinis iuhoks tna @ $45. 18

People by Department of Public Works v. Decker,

262 Cal. App. 2d 634, 69 Cal. Rptr. 110

COME =a duew aa delue re Caw < tae Webhads . 8

State by Mondale v. Gannons, Inc., 275 Minn. 14,

ok me OS ae 13

State Highway Commission v. Wortman, 4 NS.

App. 546, 167 S.E. 2d 462 (1969) ...... 13

State Highway Commission of Missouri v. Meier,

388 S.W. 2d 855 (1965), cert. denied 382

as OD <0 b's Cerda Bees Es OWN GS Siam whi 12

State ex rel. Herman v. Schaffer, 105 Ariz. 478,

Oe ee bet 13

State ex rel. State Highway Commission v. Silva,

7S WM. SO, Be P.O SC... cus... 13

Stefan Auto Body v. State Highway Commission,

21 Wisc. 2d 263, 124 N.W. 2d 319 (1961) 13

United States v. Causby, 328 U.S. 256 (1946) .. 19

United States v. General Motors, 323 U.S. 373

OM. Ri cecuakcarorectet ca ree c: 19

Wolf v. Department of Highways, 422 Pa. 34, 220

i EE oes ge lo 12

MISCELLANEOUS:

Eminent Domain Code, Act of June 22, 1964, P. L.

84:

eR MCU 5 ov co wee ec 6,7

20 PS. Section G12 ...........-.... 6, 10, 2

26 PS. Section G13................... 6, 20

- United States Constitution:

Fifth Amendment .............. 2, 3, %, 15, 19

Fourteenth Amendment ....... 2, 3,9, 15, 16, 18

iii

Opinions Below 1

OPINIONS BELOW

The judgment of the Supreme Court of Pennsy]l-

vania is unreported and is No. 1478 Allocatur Docket.

The opinion of the Commonwealth Court of Pennsy]l-

vania, which reversed the decision of the Court of Com-

mon Pleas of Bucks County in dismissing Petitioner’s

claim, is reported in 13 Commonwealth Ct. Rptr. 525

(1974). The opinion of the Court of Common Pleas

of Bucks County, Pennsylvania, is reported in 24

Bucks. County Law Rptr. 163 (1973). The Common-

wealth Court reversed the judgment of the Court of

Common Pleas of Bucks County, Pennsylvania, which

had remanded the case to the Board of View. Peti-

tion for allowance of appeal from the Commonwealth

Court of Pennsylvania to the Supreme Court of Penn-

sylvania, was denied by said Supreme Court on Au-

gust 26, 1974.

2 Jurisdiction and Question Presented

JURISDICTION

The Respondent does not question the jurisdiction

as set forth in the Petition.

QUESTION PRESENTED

Where the Commonwealth of Pennsylvania, De-

partment of Transportation has constructed a new

highway (New Street Road), where the original high-

way is barricaded at the intersection of Old Street

Road and U.S. 1, forming a cul-de-sac, where no land

has been taken, where the property in question does

not abut the new improvement, and where those uti-

lizing the subject property need travel only a short

distance in order to reach the general system of high-

ways, does a decision of the Commonwealth Court of

Pennsylvania denying liability, effect a denial of just

compensation under the Fifth Amendment, or a denial

of due process under the Fourteenth Amendment of

the United States Constitution?

Constitutional Provisions Invol ved 3

CONSTITUTIONAL PROVISIONS IN VOLVED

1. The Fifth Amendment to the Constitution of

the United States provides in pertinent part:

“‘,.. nor shall private property be taken for

public use, without just compensation.”’

2. The Fourteenth Amendment to the Constitu-

tion of the United States provides in pertinent part:

**. .. nor shall any State deprive any person

of life, liberty, or property, without due process

of law.”’

4 Counter-Statement of the Case

COUNTER-STATEMENT OF THE CASE

Petitioner’s property is located on the north side

of what is commonly known as Old Street Road (Leg-

islative Route 252), approximately two hundred fifty

feet east of Route 1 (Legislative Route 281). Prior

to 1969 Old Street Road intersected Route 1. In 1969

construction began on the relocation of Street Road.

New Street Road was laid out to the north of Old

Street Road, and, as part of the traffic engineering

plans for Street Road and Route 1, Old Street Road

was barricaded just to the east of the intersection of

Old Street Road and Route 1, resulting to the dead-

ending of Old Street Road.

Before these changes were made, the property

could be reached in the following ways; vehicles trav-

eling south on Route 1 made a left-hand turn into the

subject property. Vehicles traveling north on Route

1 made a right-hand turn onto Street Road and then

a left-hand turn into the subject property. Vehicles

traveling east on Street Road made a left-hand turn

into the property and those traveling west made a

right-hand turn.

Because the intersection of Old Street Road and

Route 1 is no longer open, access to the subject prop-

erty has been affected in the following ways: vehicles

traveling south on Route 1 turn right off Route 1 onto

a jug handle, proceed under Route 1 to Kingston Way,

make a right turn at Kingston Way which runs into

Old Street Road, make another right-hand turn onto

Counter-Statement of the Case 5

Old Street Road and then a right-hand turn into the

subject property. This is a distance of approximately

one mile, ; :

Vehicles traveling north on Route 1 have a choice

of routes to arrive at the subject property. One’ route

is similar to that used by vehicles traveling south.

The traffic can use a ramp from Route 1 to Street

Road, proceed to Kingston, Way, Old Street Road and

the subject property. This is a distance of seven-

ths of a mile. Another way is to turn right off

Route 1 at the first traffic light south of Street Road

and drive along Old Trevose Road, Windsor Drive

and Craeton Drive to the subject property, a distance

of about nine-tenths of a mile from Route 1. An alter-

nate use of this route would be to make a right-hand

turn at the first street north of the intersection with

the traffic light, proceed onto ' Windsor Drive in an

easterly direction, then north on Craeton Drive to Old

Street Road and then to the entrance of the subject

property, seven-tenths of a mile from Rovte 1.

Vehicles traveling east on New Street Road would

pags under Route 1 and make a right-hand turn onto

Kingston Way, from there to Old Street Road and the

subject property, a distance of approximately nine-

tenths of a mile. |

Vehicles traveling west on New Street Road

would make a left-hand turn onto Kingston Way and

then proceed to Old Street Road and the subject prop-

erty. This is a distance of three-tenths of a mile. All

of these additional distances are as estimated by the

Pennsylvania Department of Transportation.

6 Counter-Statement of the Case

No land of the Petitioner herein was condemned

or appropriated and, ‘Petitioner’s property does not

abut the improvement on New Street ‘Road.

On November 25, 1970, the Commonwealth o?

Pennsylvania, Department of Transportation, was

served with a copy of a petition for appointment for

‘a Board of View, along with a copy of an order for

appointment of Board of View. The Board of View

was appointed and the view of the premises set for

January 4, 1971 was continued pending the outcome

of the Commonwealth’s: preliminary objections.

Preliminary objections were overruled and a hear-

ing was held before the Board of View on July 16, 1971

for the taking of testimony. Petitioner’s property

has not been condemned. Their petition was brought

pursuant to Sections 612 and 613 of the Pennsylvania

Eminent Domain Code, Act of June 22, 1964, P. L. 84,

26 P.S. §612, §613, which permit recovery for inter-

ference with access where the property in question has

not been formally condemned.

At the Viewers’ hearing, the Commoriwealth pre-

sented no testimony on damages. Petitioner herein

presented the testimony of two witnesses, who testi-

fied that the resultant damages to claimants amounted

to $340,000.00 and ‘$350,000.00, respectively. The

Viewers found that Petitioner was not entitled to dam-

ages under the aforesaid sections of the Eminent Do-

main Code.

Petitioner herein appealed from and objected to

the Viewers’ report, basing their appeal on Section 517

of the Eminent Domain Code. The Court of Common

Pleas of Bucks County found that the activities of the

Counter-Statement of the Case 7

Commonwealth resulted in a “‘taking’’ or compensable

injuries to claimants’ property, modified the Viewers’

report accordingly, and directed that the case be re-

submitted to the same Board of View for the purpose

of taking additional testimony on the amount of dam-

ages to which claimants are entitled. As the action

of the Court of Common Pleas was a “final order’?

within the purview of Section 517 of the Eminent Do-

main Code, the Commonwealth then appealed that

order to the Commonwealth Court of Pennsylvania.

On May 20, 1974 said Commonwealth Court unani-

mously reversed the decision of the Court of Common

Pleas of Bucks County, and judgment was entered for

the Commonwealth; subsequently, the Petitioner here-

in petitioned the Supreme Court of Pennsylvania for

allowance of appeal from said judgment of the Com-

monwealth Court. On August 26, 1974 the said Peti-

tion was denied per curiam.

8 Argument

ARGUMENT

Where the Commonwealth of Pennsylvania, Depart-

ment of Transportation has constructed a new high-

way (New Street Road), where the original highway

is barricaded at the intersection of Old Street Road

and U.S. 1, forming a cul-de-sac, where no land has

been taken, where the property in question does not

abut the new improvement, and where those utilizing

the subject property need travel only a short distance

in order to reach the general system of highways, a

decision of the Commonwealth Court of Pennsylvania

denying liability, does not effect a denial of just com-

pensation under the Fifth Amendment, or a denial of

due process under the Fourteenth Amendment of the

United States Constitution.

The question presented by the Petitioner is ex-

traordinarily misleading in several respects :

A. The Commonwealth did not vacate the en-

tirety of the street upon which the Petitioner’s prop-

erty abuts, but only barricaded the said street, Old

Street Road, slightly to the east of the intersection of

that street and Route 1, which resulted in a cul-de-sac.

Ingress and egress from Old Street Road to the prop-

erty and from tie property back to Old Street Road,

remain unchangéd, and of course, as the facts indicate,

access to the general system of highways (New Street

Road) is readily available to the subject property by

Argument 9

the expedient of traveling east on Old Street Road and

making a right-hand turn onto Kingston Way which

leads to New Street Road.

B. inherent in the question is a statement, as a

fact, that there was a substantial interference with

access as a result of the Commonwealth’s activities.

The Commonwealth Court of Pennsylvania held pre-

cisely the opposite and found that this was an incon-

venience of access, nothing more, and that if there was

an alteration in the highest and best use, and a diminu-

tion in the value of the property, it was the result of

a diversion of traffic from relocated Old Street Road

onto New Street Road, a modern four-lane facility.

C. The statement inherent in the question, that

Petitioner has sustained damages in the amount of

$360,000.00, is purely self-serving in that it represents

testimony presented only at a Viewers’ hearing by

the Petitioner. The Commonwealth, taking the posi-

tion that there was no cause of action, this position

to be upheld later by the Commonwealth Court and

the Supreme Court of Pennsylvania, did not present

testimony relative to damages.

The Commonwealth submits that it has not vio-

lated the Fifth Amendment of the United States Con-

stitution because it has not taken private property or

property rights for public use, relating to the subject

property, within the purview of the Eminent Domain

Code of Pennsylvania, or well established case law in

Pennsylvania and other jurisdictions. The Common-

wealth further submits that it is not in violation of the

Fourteenth Amendment of the United States Constitu-

tion in that is has not deprived the Petitioner of prop-

10 Argument

erty, and that certainly there has been due process of

law, this matter having been heard by the Viewers, by

the Court of Common Pleas of Bucks County, by the

Commonwealth Court of Pennsylvania, and having

been presented to the Supreme Court of Pennsylvania

and rejected by that tribunal.

The Commonwealth finds itself in complete agree-

ment with the statement made in Petitioner’s brief on

page 8 thereof: ‘‘It is obvious that not every property

owner who suffers a loss in value of his property has

a constitutional right to just compensation, even if the

loss is occasioned by the construction of a new high-

way.” This is clearly one such ease.

Of course, the Commonwealth is liable for the

consequences of a substantial interference with ac-

cess ; this is clearly spelled out in §612 of the Eminent

Domain Code; however, under the facts no such inter-

ference can be deemed to have occurred. No land has

been condemned or otherwise acquired from the Peti-

tioner, and the Petitioner does not abut the improve-

ment on New Street Road, a requirement for conse-

quential damages under any circumstances, within the

purview of §612 of the Eminent Domain Code. The

subject property is, as stated, some 300 feet distent

from the intersection which was barricaded, and this

had the effect of diverting traffic onto New Street

Road. This hardly constitutes being rendered “slightly

short of totally landlocked.” The Petitioner, having

frontage on Old Street Road had two directions avail-

able to him in which to travel, and not four as alleged.

Upon leaving the property, he could travel either east

or west which was the direction of the intersection

Argument 11

with U.S. No. 1. Following construction, he still has

the ability to make a left-hand turn onto Old Street

Road travel a short distance east, at which time he

may arrive at the general system of roads which take

him speedily in any direction he chooses.

The Petitioner says on page 8 of his brief that the

State Courts, in considering the national standard of

the constitution requirement of just compensation,

have reached varying results. This statement is so

broad as to be virtually meaningless. While every

state has acknowledged its obligation to fulfill its con-

stitutional requirement of just compensation, quite

naturally in fifty jurisdictions there has been some

difference of opinion with regard to what constitutes

an interference with access. The fact is, the Common-

wealth of Pennsylvania, and at least ten other states

uniformly hold that the creation of a cul-de-sac, with

no taking of land, and which allows a reasonable

means of access to the system of highways, is not a

taking, injury or destruction, and gives rise to no

eause of action in eminent domain.

The Courts in Pennsylvania, contrary to the state-

ment by the Petitioner, have by no means differed with

regard to circuity of access, as opposed to interference,

with access generally, and with regard to the creation

of the circuitous situation known as a cul-de-sac, spe-

cifically. In re: Melon Street, 182 Pa. 397, 38 A. 482,

decided in 1897, and relied upon heavily in previous

arguments by the Petitioner herein was overruled 36

years later in Fecher v. Allegheny County, 313 Pa. 191,

169 A. 87 (1933). The Court, in that case stated:

12 Argument

“The basis of Plaintiff’s complaint on the

score of deprivation of access is that it is now

necessary for one to travel a slightly greater dis-

tance from her property than formerly in order

to reach the main highway at the site of the cross-

ings. It must now be regarded as a settled fact

that such a situation cannot of itself give rise to

a claim for damages. The underlying principle

is damages will not be allowed where the effect +

of disturbance to the highway is merely to cause

the owner to travel a short distance further in

order to reach the system of streets in that direc-

tion.”’

This principle has been strengthened in Pennsylvania

over the years and is the law today.

The leading cases in Pennsylvania are Wolf v.

Department of Highways, 422 Pa. 34, 220 A. 2d 868

(1966) ; Mitchell Condemnation Case, 209 Pa. Superior

Ct. 288, 228 A. 2d 53 (1967 ), and Hession Condemna-

tion Case, 430 Pa. 273, 242 A. 2d 432 (1968), cert.

denied in 393 U.S. 1049. In the M itchell case, supra,

where damages were sought for the result of the va-

cating of a road near the claimant’s property, and

denied, the Superior Court of Pennsylvania relied up-

on a California case, Breidert v. Southern Pacific

Company, 39 Cal. Rptr. 903, 61 Cal. 2d 659, 394 P. 2d

719 (1964). In the Hession case, supra, the Supreme

Court of Pennsylvania, cites a Missouri ease, State

Highway Commission of Missouri v. Meier, 388 S.W.

2d 855 (1965), cert. denied in-382 U.S. 846. That case

set the standard for the three leading Pennsylvania

cases cited above, in stating:

Argument 13

‘An abutting property owner’s right to access

. . - ineludes the further right to connect with or

reach the system of public highways .. . The right

does not include the right to travel in any par-

ticular direction from one’s property or upon any

particular part of the public highway right of way

because, after one is upon the highway he has the

same right as all other travelers and the right of

travel is a public right and controlled by the police

power of the state.’’

¢

Other jurisdictions with identical holdings as

those of the leading Pennsylvania cases are New Mex-

ico: State ex rel. State Highway Commission vs.

Silva, 71 N.M. 350, 378 P. 2d 595 (wherein Re Melon

Street was specifically rejected) ; Wisconsin: Stefan

Auto Body v. State Highway Commission, 21 Wise.

2d 263, 124 N.W. 2d 319 (1961); Kansas: Brook v.

State Highway Commission, 195 Kan. 361, 404 P. 2d

934 (1965); Minnesota: State by Mondale vs. Gan-

nons, Inc., 275 Minn. 14, 145 N.W. 2d 321 (1966) ;

Nebraska: Berlowitz vs. State Department of Roads,

180 Neb. 164, 141 N-W. 2d 764 (1966) ; North Carolina:

State Highway Commission vs. Wortman, 4 N.S. App.

546, 167 S.E. 2d 462 (1969); Arizona: State ex rel.

Herman vs. Schaffer, 105 Ariz. 478, 467 S.W. 2d 66;

California: People by Department of Public Works

vs. Becker, 262 Cal. App. 2d 634, 69 Cal. Rptr. 110

(1968); and Idaho: James vs. State, 88 Idaho 397

P. 2d 766 (1964).

The Commonwealth Court of Pennsylvania in

reversing the decision of the Court of Common Pleas

of Bucks County, makes it clear that both that Court

14 Argument

and the Petitioner herein have confused loss of ac-

cess and diversion of traffic, in taking the position

that damages were payable, when by the demonstrable

facts, traffic has been diverted onto a parallel, com-

peting highway, as a resulf of construction of said

highway and the placement of a barricade creating a

cul-de-sac on the highway on which the Petitioner’s

property fronted. Thus, however much the Petition-

er herein may protest that his claim is not based upon

diversion of traffic, the facts themselves lead ines-

capably to this conclusion. The Commonwealth Court

on page 5 of its opinion states:

“‘The following quotation from Hession could

just as readily have been written of this case and

its record:

‘The record before the viewers makes it evi-

dent that the damage suffered by appellees is a

product of the fact that the elevated highway has

transformed what was once a heavily traveled

highway (State Road) into a street which carries

primarily local traffic only.’ In essence, appellees

base their claim on a belief that the change in the

traffic pattern caused by the construction of the

expressway and the concomitant decrease in the

‘t Prior to the construction of the elevated highway, State

Road was used to avoid heavy traffie on both Torresdale and

Frankford Avenues. The testimony of appellees’ two real estate

appraisers makes it evident that their estimates of the damage suf-

fered is based totally upon loss of traffic. One appraiser char-

acterized the present location of appellees’ tavern restaurant as

“‘inconspicuous’’ while the other stated that the elevated highway

had destroyed all ‘‘profitable use’’ of the premises.’

Argument 15

value of their land as a business property is com-

pensable; they urge this Court to distinguish be-

tween properties used for business purposes and

those employed as residences and contend that

business establishments do have a compensable

interest in the traffic pattern existing before a

street has been vacated. This argument was con-

sidered and expressly rejected in Wolf v. Depart-

ment of Highways, 422 Pa. 34, 220 A. 2d 868

(1966).’ 430 Pa. at 278-9, 242 A.2d at 434-5.”’

Since, in both the Hession case and the present

one, a heavily traveled State highway was converted

into a street which carries primarily local traffic only,

it is well to point out, as does the Petitioner at the

bottom of page 10 on his brief, that certiorari was

denied in the Hession Condemnation Case, 393 U.S.

1049 (1969). Inasmuch as the Hession case is squarely

in point with the present one, the Commonwealth

submits that this Honorable Court would have no rea-

son to entertain certiorari.

While the series of federal cases cited by the Peti-

tioner are of interest academically, all of them are

faciuaily dissimilar to the present case, none of them

are in point, and in no manner establish that the

Commonwealth has violated either the Fifth or Four-

teenth Amendment of the United States Constitution,

by changing the traffic flow on the highway upon

which the subject property abuts.

In Martin v. Creasy, 360 U.S. 219 (1959),’the dis-

tinction between that case and the present one is quite

obvious. In that case there was an attempt to obtain

injunctive relief by abutting (emphasis supplied )

16 Argument

property owners, and to have the ‘Pennsylvania

Limited Access Highway <Act’’ declared unconstitu-

tional. The court was there concerned with the con-

stitutionality of a statute, as opposed to the constitu-

tional right of just compensation. This Honorable

Court held that where the Pennsylvania State Courts

had determined that the statute in question provided

an adequate procedure, consistent with the due pro-

cess requirements of the United States Constitution,

whereby property owners, fronting on such a highway,

rendered limited access by the Commonwealth, could

seek damages, then, this Court would have no reason

to adjudicate. Creasy v. Lawler, 8 Pa. D. & C. 24 535

(1956), was the Court of Common Pleas decision on

Martin v. Creasy, supra. There the court held that

the ‘‘Limited Access Highway <Act’’ is constitutional,

since it contains a procedure whereby affected prop-

erty owners may litigate on the question of compensa-

tion for loss of access. Again, this is in no way fac-

tually related to the present case. In Creasy v. Ste-

vens, 160 Fed. Supp. 404 (1958), the federal District

Court granted an injunction on activity under the

‘Limited Access Highway Act’’, on the ground that

it was in violatidh-of the due process clause of the

Fourteenth Amendment. On appeal to this Honorable

Court, the decision was reversed, under the citation

earlier mentioned, Martin ‘v. Creasy, 360 U.S. 219

.. (1959), because as stated, there was indeed a proce-

dure for the preservation of the rights of the property

owners, and therefore no violation of the Fourteenth

Amendment of the United States Constitution. The

reason for the inclusion of the Creasy cases is obseure.

If anything, they solidify the attitude of this Honor-

ne ay TOSS MOR RET ITE mp eRCRTY % Py

Argument 17

able Court in not wishing to intervene with respect to

the merits of a given eminent domain case, as concerns

the compensability of an element of damage, or indeed,

whether or not there is a cause of action, so lon, as the

claimant has full access to the courts for the purpose

of endeavoring to establish his claim. As this Court

states in Martin v. Creasy, 360 U.S. 219, on page 234:

“‘There is no reason to suppose that the Common-

wealth of Pennsylvania will not afford full constitu-

tional scope to the statutory phrase ‘actual taking of

property’.’’

In his brief on page 14, the Petitioner herein

makes reference to a statement made by the attorney

for the Commonwealth in his brief in the Hession

condemnation case, supra, where, although such facts

are not involved in the Hession case, a statement is

made to the effect that the creation of a cul-de-sac

would be compensable.. In addition, the Petitioner

has filed a copy of the Commonwealth’s brief in the

Hession case together with his petition. The Com-

monwealth submits that such a reference is a highly

improper one in several respects. The opinion was

personal to tue attorney drafting the brief in the

Hession case, was directly contrary to existing case

law in the State of Pennsylvania, and the Common-

wealth Court, in deciding the case at bar, clearly un-

derstood this in ignoring the comment, which was:

called to its attention. As a matter of fact it is that

very decision, the Hession case, upon which the Com-

monwealth Court bases a good deal of its reasoning.

Even assuming that there is any degree of propriety

in discussing a statement made in a brief in another

- ease, rather than the law of Pennsylvania, it should

2

18 Argument

then be noted that the statement contains the following:

‘In order for recovery to be had when a street is

vacated, but no land is taken, the property owner must

be left in a position which is unique and substantially

different than that of his neighbors and the public

generally.’’ (Emphasis supplied.) The Petitioner

can hardly be said to be in a unique and substantially

different position than that of his neighbors, when in

fact Old Street Road contains four other properties,

all of which are now on a street which contains a cul-

de-sac on one end, and allows access to the genera]

system of streets on the other.

Chicago B&Q R Company v. Chicago, 166 U.S.

226 (1897), and Duncan v. Louisiana, 391 U.S. 145

(1968), cited by the Petitioner in support of the prop-

osition that a taking in a constitutional sense is not

limited to an actual physical possession or seizure, are

not disputed by the Commonwealth in terms of the

general principle. The Eminent Domain Code of

Pennsylvania makes it quite clear that under certain

enumerated circumstances, damages are payable in

Eminent Domain without a physical appropriation

of the property. The creation of a cul-de-sac is not

one such circumstance. Duncan v. Louisiana, 391 U.S.

145 (1968), cited by the Petitioner, is a criminal case

where, although the defendant stood accused of a crime

punishable by a maximum of two years imprisonment

and a $300.00 fine, he was nevertheless entitled to a

jury trial, within the purview of the Fourteenth

Amendment of the United States Constitution. Penn-

sylvania Coal Company v. Mahon, 260 U.S. 393 (1922),

cited by the Petitioner, was a case where the act in-

volved was declared unconstitutional because it did

Argument 19

not provide for compensation. Contrary to the state-

ment made by Petitioner herein, the act did more than

“merely prohibit underground mining’’. Under the

facts in the case, there was the taking of a substantial

subsurface property interest, Another case relied

upon by the Petitioner is the United States v. General

Motors, 323 U.S. 373 (1945), which was a federal

eminent domain action, where condemnor temporarily

occupied a portion of a leased building, and there, quite

predictably, the court held that the Fifth Amendment

of the United States Constitution required the payment

of compensation.

That low-flying aircraft can cause compensable

damage to property, is not herein disputed, and where

in United States v. Causby, 328 U.S. 256 (1946), mili-

tary aircraft destroyed the subject property’s use as

a commercial chicken farm, it was held that compensa-

tion was payable. Of course, the Court was quick to

point out that these damages ‘‘were the product of a

direct invasion of condemnee’s domain’’, In the pres-

ent case there is no invasion, direct or indirect. Sim-

ilarly, in a case cited by the Petitioner herein, Griggs ~

v. Allegheny County, 269 U.S. 84 (1962), where low-

altitude flights over a private home destroyed the

possibility of peaceful enjoyment of this property, this

ri enc was held to be compensable. It is apparent

that all of the federal cases cited by the Petitioner in

support of his position are so alien to the factual cir-

cumstances in the present case, as to be of no value

whatever in determining the constitutional right to

damages, where in fact nothing more has occurred than

a diverting of traffic.

20 ) | Argument

The Commonwealth of Pennsylvania has set forth

clear and definitive standards, under Section 612 and

Section 613 of the Eminent Domain Code of 1964, as

amended, for the compensability of the legitimate inter-

ference with access in the absence of a taking of land,

property owner has a reasonable means of access to the

general system of highways. The Petitioner has such

& reasonable means of access, and need travel only

several hundred feet in order to reach the system. He

is therefore not an innocent victim of progress, as al-

leged, but a property owner seeking to assert a con-

stitutional right that does not exist; namely, the right «

to the flow of traffic that originally passed his door,

The Commonwealth submits that there are indeed

guidelines with respect to the right to damages of a

landowner, as a result of highway construction, reloca-

tion and vacation, and trusts that this Honorable Court |

will leave the implementation of such guidelines to the

sound discretion of the state courts,

Argument 21

CONCLUSION

——_—__

Therefore, your respondent, the Commonwealth

of Pennsylvania acting through its Department of

Transportation, respectfully prays that this Honor-

able Court deny the petition for writ of certiorari.

Respectfully submitted,

GeorGE Bristor

Assistant Attorney General

Rosert W. Cunuirrr

Deputy Attorney General—Chief

Counsel

IsRAEL Packer

Attorney General

Attorneys for Commonwealth

i