# Opposition Brief — Kastner v. Pennsylvania Department of Transportation > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_2180%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1975 - **Citation:** 419 U.S. 1109 ## Text DEC 13 } tn the zi f | | Aaa Bujted States wtne, V4 = 590 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