HomeMy WebLinkAbout00-0282414420810302006 Cumberland County Prothonotary's Office Page 1
PYS510 Civil Case Print
2000-02824 IN RE CONDEMNATION (vs) PENNSYLVANIA COMMONWEALTH OF
Reference No..: Filed........: 5/05/2000
Case Type.....: DECLARATION OF TAKING Time.........: 12:47
Judgment...... 00 Execution Date 0/00/0000
Judge Assigned: OLER J WESLEY JR Jury Trial....
Disposed Desc.: DISCONTINUED Disposed Date. 9/14/2000
------------ Case Comments ------- Higher Crt 1.:
Higher Crt 2.:
General Index Attorney Info
PENNSYLVANIA COMMONWEALTH OF CONDEMNOR LINER STUART A
DEPARTMENT OF TRANSPORTATION CRESSLER WILLIAM J
OFFICE OF CHIEF COUNSEL SMITH DONALD J
P 0 BOX 8212
HARRISBURG PA 17105 8212
UPPER ALLEN TOWNSHIP CONDEMNEE COYNE LISA MARIE
* Date Entries
FIRST ENTRY - - - - - - - - - - -
5/05/2000 DECLARATION OF TAKING - UPPER ALLEN TOWNSHIP
DALLMEYER CARL E - KELLY J 4775 N SHERMAN ST EXT MT WOLF PA
ROTH WILLIAM F CHARLES F SCHUBERT & SAMUEL L REED ANNA BIANCO
INC WILLIAM F ROTHMAN PRESIDENT T/D/B A ROTHMAN SCHUBERT AND REED
REALTORS 308 EAT PENN DRIVE ENOLA P
COUNTRY SQUARE PARTNERSHIP A PENNSYLVANIA GENERAL PARTNERSHIP
ASHCOMBE PRODUCTS COMPANY GENERAL PARTNER JOHN S THORNTON
19 NORTH BALTIMORE STREET DILLSBURG PA
ALICE RMOUNTZ 899 EMILY DRIVE MECHANICSBURG PA
---------- ------------------- - -----
5/05/2000 PRAECIPE TO ENTER APPEARANCE STUART A LINER ASST COUNSEL FOR
COMMONWEALTH OF PA
----------------------------------------------- ------
5/22/2000 PROOF OF SERVICE
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5/22/2000 MEMORANDUM - DIN ARATION OF TAKIING6 FILED IN THERECORDER OF DEEDS
OFFICE 5/5/00 BOOK 643 PAGE 87
---------------------------------- ---------- -----
6/09/2000 PRELIMINARY OBJECTIONS OF ROTHMAN SCHUBERT AND REED REALTORS
------------------------------------------------------ -----
6/13/2000 PRAECIPE FOR APPEARANCE FOR CONDEMNOR COMMONWEALTH OF PENNSYLVANIA
DEPAR'T'MENT OF TRANSPORTATION BY CHRISTOPHER J CLEMENTS ESQ
------------- --------- ------- --------
6/13/2000 CONDEMNOR'S PETITION FOR RULE TO SHOW CAUSE WHY PRELIMINARY
OBJECTIONS SHOULD NOT BE DISMISSED MOTION FOR EXPEDITED HEARING
MOTION TO CONSOLIDATE WITH SIMILAR ACTION
----------------- --------------------------------------------
6/20/2000 PETITION FOR WRIT OF POSSESSION
------------------------------------------------------- -----
6/21/2000 ORDER - DATED 6/20/00 - IN RE CONDEMNOR'S PETITION FOR RULE TO SHOW
CAUSE WHY PRELIMINARY OBJECTIONS SHOULD NOT BE DISMISSED MOTION
FOR ECPEDITED HEARING MOTION TO CONSOLIDATE WITH SIMILAR ACTION -
MOTION FOR EXPEDITED HEARING GRANTED - MOTION CONSOLIDATE SIMILAR
ACTION GRANTED - RULE RETURNALBE ON 6/28/00 AT 9:30 AM IN CR 1 OF
THE CUMBERLAND COUNTY COURTHOUSE CARLISLE PA BY THE COURT J WESLEY
OLER JR J COPIES MAILED 6/21/00
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6/20/2000 RULE TO SHOW CAUSE - DATED 6/20/00 - RULE RETURNABLE AT HEARING
6/28/00 AT 9:30 AM IN CR 1 0 THE CUMBERLAND COUNTY COURTHOUSE
CARLISLE PA BY THE COURT J WESLEY OLER JR J COPIES MAILED
6/21/00
------------------------------------------------- ------ -----
6/23/2000 PRAECIPE FOR ENTRY OF APPEARANCE FOR COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION - BY WILLIAM J CRESSLER ESQ
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6/23/2000 PRAECIPE FOR ENTRY OF APPEARANCE FOR COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION BY DONALD J SMMTH ESQ
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6/28/2000 PLAINTIFF'S REPLY TO DEFENDANTS PETITION FOR WRIT OF POSSESSION
14420810302006 Cumberland County Prothonotary's Office Page 2
PYS510 Civil Case Print
2000-02824 IN RE CONDEMNATION (vs) PENNSYLVANIA COMMONWEALTH OF
Reference No..: Filed........: 5/05/2000
Case Type.....: DECLARATION OF TAKING Time.........: 12:47
Judgment...... 00 Execution Date 0/00/0000
Judge Assigned: OLER J WESLEY JR Jury Trial....
Disposed Desc.: DISCONTINUED Disposed Date. 9/14/2000
------------ Case Comments ------------- Higher Crt 1.:
Higher Crt 2.:
----------------------------------------- - -----------------
7/03/2000 ORDER OF COURT - DATED 6/28/00 - DEPARTMENT'S REQUEST FOR WRIT OF
PSOSESSION IS GRANTED UPON CONSENT OF PLAINTIFFS - BY J WESLEY OLER
JR J - COPIES MAILED 7/6/00
------------------------- -----------------
9/14/2000 PRAECIPE TO SETTLE BY LISA MARIE COYNE ESQ
-------------------------- -----------------
3/02/2005 PETITION FOR APPOINTMENT OF BOARD OF VIEWERS PURSUANT TO 26 PS
1-502 A - BY L C HEIM ESQ FOR PLFF
------- -------------------------------------------------
3/11/2005 ORDER - DATED 3/10/05 - IN RE PETITION FOR BOARD OF VIEWERS - THE
COURT APPOINTS WILLIAM A DUNCAN ESQ FRED HEFLEFINGER JAMES SHEYA -
AS A BOARD OF VIEWERS TO ASSESS DAMAGES IN THE CONDEMNATION AND
FURTHER ORDERS THAT THE BOARD OF VIEWERS PERFORM ITS DUTIES IN
ACCORDANCE WITH THE LAW AND ACTS OF ASSEMBLY AND GRANTS LEAVE TO
THE BOARD OF VIEWERS TO ISSUE AN INTERLOCUTORY REPORT OF
INTERLOCUTORY REPORTS COVERING SUCH PROPERTIES OR CLAIMS AS THE
BOARD OF VIEWERS DETERMINES APPROPRIATE - BY THE COURT J WESLEY
OLER JR J COPIES MAILED 3/21/05
-------------------------------------------------------------------
4/13/2005 PRAECIPE FOR ENTRY OF APPEARANCE FOR CONDEMNOR COMMONWEALTH OF
PENNSYLVANIA DEPTARTMENT OF TRANSPORTATION - BY AMANDA G PHILY ESQ
------------------------------------------------------------
9/18/2006 DEFTCCOMMON ENTPA/PENEARA CE - BY DONALD J SMITH ATTY FOR
-----OMMO ------------------------ ----------------------
9/18/2006 PRAECIPE FOR LISTING CASE FOR ARGUMENT - PRAECIPE FOR ENTRY OF
APPEARANCE - BY DONALD J SMITH ATTY FOR DEFT
- - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - -
* Escrow Information
* Fees & Debits Begg Bal Py*mts/Adi End Bal
******************************** ******** ****** *******************************
DECLAR/TAKING 35.00 35.00 .00
TAX ON DECLAR .50 .50 .00
SETTLEMENT 5.00 5.00 .00
JCP FEE 5.00 5.00 .00
------------------------ ------------
45.50 45.50 .00
********************************************************************************
* End of Case Information
********************************************************************************
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF RIGHT OF WAY FOR S.R. 0015,
SECTION A12, A LIMITED ACCESS
HIGHWAY IN THE TOWNSHIP OF
UPPER ALLEN
CARL E. DALLEMYER and
KELLY J. DALLMEYER
Plaintiffs
V.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Defendant
PRAECIPE
TO THE PROTHONOTARY:
CIVIL ACTION -- LAW
No. 00-2824 CIVIL TERM
EMINENT DOMAIN
PROCEEDINGS
Kindly enter my appearance on behalf of the condemnor, Commonwealth of
Pennsylvania, Department of Transportation, the defendant in the above-captioned matter.
OF CHIEF
By: IrUX-fI r
manda G. Phily, Esquire
Attorney for the Defendant
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF RIGHT OF WAY FOR S.R. 0015,
SECTION A12, A LIMITED ACCESS
HIGHWAY IN THE TOWNSHIP OF
UPPER ALLEN
CARL E. DALLMEYER and
KELLY J. DALLMEYER,
Plaintiffs
CIVIL ACTION -- LAW
No. 00-2824 CIVIL TERM
V.
COMMONWEALTH OF PENNSYLVANIA, EMINENT DOMAIN
DEPARTMENT OF TRANSPORTATION, PROCEEDINGS
Defendant
CERTIFICATE OF SERVICE
I certify that I am serving the attached Praecipe for Entry of Appearance in the
manner,and upon the person as set forth below, which service satisfies the
requirements of Pa.R.C.P.
BY FIRST CLASS MAIL:
Larry C. Heim, Esquire
KATHERMAN HEIM & PERRY
345 East Market Street
York, PA 17403
Dated:April,5, 2005
By: r f •?• ?? y?
manda G. Phily
Assistant Counsel
Attorney for the Defendant
April 8, 2005
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
OFFICE OF CHIEF COUNSEL
REAL PROPERTY DIVISION
POST OFFICE BOX 8212
HARRISBURG, PA 17105-8212
TELEPHONE: (717) 787-3128
FACSIMILE: (717) 772-2741
William A. Duncan, Esquire
Chairperson, Board of View
1 Irvine Row
Carlisle, PA 17013-3019
GENERAL COUNSEL
Re: Carl E. & Kelly J. Dallmeyer v. Commonwealth of Pennsylvania
Department of Transportation
No. 00-2824 CIVIL TERM (Cumberland County)
Dear Attorney Duncan:
Please be advised that I will be representing the Commonwealth of
Pennsylvania in all matters related to the above-captioned claim. Kindly direct
notices and correspondence directly to me at the above address, with a copy thereof
to PennDot R/W Administrator, Engineering District 8-0, 2140 Herr Street,
Harrisburg, PA 17103.
Enclosed please find a copy of my praecipe for entry of appearance which I
recently filed with the prothonotary of Cumberland County.
Thank you for your consideration and attention to this matter.
Very truly yours,
BY:
/Amanda G. Phily
Assistant Counsel
Right of Way Section
cc: Larry C. Heim, Esquire, Katherman Heim & Perry
David B. Reynolds, R/W Administrator, District 8-0
William J. Cressler, Assistant Chief Counsel
Christopher J. Clements, Assistant Counsel-in-Charge
COMMONWEALTH KEYSTONE BUILDING • C FLOOR -400 NORTH STREET • HARRISBURG, PA 1 71 20-0096
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION, OF THE
RIGHT-OF-WAY FOR STATE
ROUTE 0015, SECTION A12, A
LIMITED ACCESS HIGHWAY IN
THE TOWNSHIP OF UPPER ALLEN
NO. fxj o??fo?y
EMINENT DOMAIN PROCEEDING
IN REM
DECLARATION OF TAKING
TO THE HONORABLE, THE JUDGES OF THE SAID COURT:
This Declaration of Taking, based on the provisions of Article IV, Section 402, of
the Eminent Domain Code, Act of June 22, 1964, P. L. 84, 26 P. S. 1-402, as amended,
respectfully represents that:
1. The Condemnor is the Commonwealth of Pennsylvania, Department of
Transportation, acting through the Secretary of Transportation.
2. The address of the Condemnor is:
Commonwealth of Pennsylvania
Department of Transportation
Office of Chief Counsel
P.O. Box 8212
Harrisburg, PA 17105-8212
3. The Department of Transportation is authorized by the provisions of
Section 2003(e) of the Administrative Code of 1929, P. L. 177, 71 P. S. 513(e), as
amended, to acquire by gift, purchase, condemnation or otherwise, land in fee simple or
such other estate or interest as it shall determine, in the name of the Commonwealth for
all transportation purposes.
4. The within condemnation has been authorized by a plan signed by the
Secretary of Transportation on February 18, 2000, entitled "Drawings Establishing and
Re-establishing a Limited Access Highway Authorizing Acquisition of Right-of-Way for
State Route 0015, Section A12 R/W in Cumberland County, and State Route 2004, " a
copy of which plan was filed in the County Recorder's Office in Cabinet 3, Drawer 1 at
Page 130 on March 10, 2000.
5. The purpose of the within condemnation is to acquire property for
transportation purposes.
6. A Schedule of Property Condemned identifying and specifying the
location of the property hereby condemned is attached hereto and made a part hereof.
7. Plans showing the property hereby condemned may be inspected in the
Recorder's Office of the aforesaid County at the places indicated on the attached
Schedule of Property Condemned or, if not shown thereon, on the day of the filing of this
document being lodged for record or filed in said Recorder's Offices, where they may be
inspected.
8. The nature of the title hereby condemned is fee simple and a temporary
constuction easement.
9. In the event there are recoverable minerals (including gas and oil) within
the areas, if any, hereby condemned in fee simple, the mineral rights (including rights to
gas and oil) in those areas are hereby excepted and reserved from this condemnation,
provided however, that the right of support of the areas condemned is included within the
scope of this condemnation, and no access from the surface of such areas for removal
purposes will be allowed without permission from the Commonwealth.
10. The payment of just compensation in this matter is secured by the
Commonwealth's power of taxation.
11. I, Gary C. Fawver, P.E., Chief, Right of Way and Utilities Division, of the
Department of Transportation, do hereby depose, swear and affirm that I am authorized
by and do hereby execute this Declaration of Taking on behalf of the Commonwealth of
Pennsylvania, Department of Transportation, and that the averments contained and set
forth herein are true and correct to the best of my knowledge, information and belief, and
are made subject to penalties provided in 18 Pa. C. S. §4904, relating to false swearing to
authorities.
WHEREFORE, fee simple title and a temporary constuction easement are hereby
condemned from the properties identified on the attached Schedule of Property
Condemned, as indicated on the plans referenced in paragraph 7 above.
C
Chief, Right of YVay and Utilities Division
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF RIGHT OF WAY FOR STATE
ROUTE 0015, SECTION A12,
A LIMITED ACCESS HIGHWAY IN THE TOWNSHIP OF UPPER
ALLEN
DECLARATION OF TAKING
Stuart A. Liner
Assistant Counsel
ID No. 15290
Commonwealth of Pennsylvania
Department of Transportation
Office of Chief Counsel
P.O. Box 8212
Harrisburg, PA 17105-8212
Page 1
COMMONWEALTH OF PENNSYLVANIA
RW437 (10/99) DEPARTMENT OF TRANSPORTATION
SCHEDULE OF PROPERTY CONDEMNED
(Declaration of Taking)
REMIS Pro. No. 080039 TYPE OF DESCRIPTION
Count Cumberland D- Deed Description
Fed. Proi. No. Q05-0131-115 P- Plan lodged for recording with Notice
Municipality Upper Allen Township of Condemnation
Route-Sec. 0015-A12 R- Plan now recorded in Recorder's Office
Parcel
No.
Claim
Number
Name, Mailing Address, Property
Interest of Condemnees, and
Location of Condemned Property Attached
Exhibit
Number
if an
"Type of
Description
Plan (if any)
Recorded in
37 21000330000 Carl E. Dallmeyer, A Married Man and R Cabinet 3, Drawer 1
Kelly J. Dallmeyer, A Single Woman, as Page 130
Joint Tenants with the right of survivorship Sheets #57, 26, 28 & 31
4775 N. Sherman Street Ext.
Mt. Wolf, PA 17347
Location of Property
Deed Book 163, Page 659
40 21000430000 William F. Rothman, Charles F. Schubert R Cabinet 3, Drawer 1
and Samuel L. Reed, Anna Bianco, Page 130
Incorporated, William F. Rothman, Sheets #21, 28, & 31
President
T/D/B/A Rothman, Schubert and Reed
Realtors
308 East Penn Drive
Enola, PA 17025
Location of Property
Deed Book Q-33, Page 1038
46 21000460000 Country Square Partnership, A R Cabinet 3, Drawer 1
Pennsylvania General Partnership Page 130
Ashcombe Products Company, General Sheets # 22 & 31
Partner
John S. Thornton, CEO
19 North Baltimore Street
Dillsburg, PA 17019
Location of Property
Deed Book 204, Page 1146
57 21000490000 Alice R. Mountz, Single R Cabinet 3, Drawer 1
899 Emily Drive Page 130
Mechanicsburg, PA 17055 Sheets # 22 & 30
Location of Property
Deed Book 134, Page 259
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION, OF THE RIGHT-
OF-WAY FOR STATE ROUTE 0015,
SECTION A12, A LIMITED ACCESS
HIGHWAY IN THE TOWNSHIP OF
UPPER ALLEN
NO.
EMINENT DOMAIN PROCEEDING
IN REM
PRAECIPE TO ENTER APPEARANCE
TO THE PROTHONOTARY OF SAID COURT:
Please enter the appearance of Stuart A. Liner, Assistant Counsel, Office of Chief
Counsel, Department of Transportation, P.O. Box 8212, Harrisburg, PA 17105-8212, as attorney
for the Commonwealth of Pennsylvania, Department of Transportation, Condemnor in the
above-captioned proceedings.
Stuart A. Liner
Assistant Counsel
Dated: d0 a
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION, OF THE
RIGHT-OF-WAY FOR STATE
ROUTE 0015, SECTION A12
IN THE TOWNSHIP OF UPPER ALLEN
NO. 00-2824 CIVIL
EMINENT DOMAIN
IN REM
MEMORANDUM TO PROTHONOTARY
TERM,
You are hereby informed that the notice of the condemnation effected by the Declaration of
Taking filed to the above term and number on May 5, 2000, was recorded in the office of the Recorder
of Deeds of the above county in Book 643, Page(s) 876.
The condemnation book and page number, file number, or microfilm number of any property
plat filed or microfilmed separately from the said Notice of Condemnation is shown on the list of
property condemned which is attached hereto.
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Y ri / n " L-)
District Right-of-Fay Administrator
Engineering District 8-0
COMMONWEALTH OF PENNSYLVANIA
RW437 (I 0199) DEPARTMENT OF TRANSPORTATION
S_ -CHEDULE-OF PROPERTY CONDEMNED
(Declaration of Taking)
REMIS Pro'. W. OW39 TYPE OF DESCRIPTION
county Cumberland D- Deed Description -
Fed. Pro . No. 005-0131-115 P= Plan lodged for recording with Notice
Munici ell Upper Allen Townshi ufCOndentnation "
Rome-Sec. 0015-A t 3 Rr Plain now recorded in k4cortler'sl Office
Page 1 PlP
s;
Parcel
No.
Claim
Number
Name. Mailing Addre4, Property
Interest of Coudemnees, and
Location of Condemned Pro Attached
Exhibit
Number
if an
-Type of
Ik rition
Plan (if any)
Recorded in
37 21000330000 Carl E. Dallmeyer. A Married Man and R Cabinet 3, Drawer I
Kelly J. Dallmeyer. A Single Woman, as page 130
Joint Tenants with the right of survivorship Shasta 057, 26, 28 & 31
4775 N. Sherman Street Ext.
Mt. Wolf, PA 17347 _
Location of Property
Deed Book 163. Page 659
40 21000430000 William F. Rothman. Charles F. Schubert R Cabinet 3, Drawer I
and Samuel L. Reed, Anna Bianco, Page 130
incorporated. William F. Rothman, Sheets #21, 28. & 31
President
T/D/B/A Rothman, Schubert and Reed
Realtors
308 East Penn Drive
Ennis. PA 17025
Location of Property
Deed Book Q-33, Page 1038
46 21000460000 Country Square Partnership, A R Cabinet 3, Drawer I
Pennsylvania General Partnership Page 130
Ashcombe Products Company, General Sheets # 22 & 31
Partner
John S. Thornton, CFA
19 North Baltimore Street
Dillsburg, PA 17019
Location of Property
Deed Book 204, Page 1.146
57 21000490000 Alice R. MOUM74 Single R Cabinet 3, Drawer I
899 Emily Drive Page 130
Mechanicsburg, PA 17055 Sheets # 22 & 30
Location of Property
Deed Book 134, Page 259'
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RW432 (03/99)
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION, OF THE
RIGHT-OF-WAY FOR STATE
ROUTE 0015, SECTION A12
IN THE TOWNSHIP OF UPPER ALLEN
NO. 00-2824 CIVIL TERM,
: EMINENT DOMAIN PROCEEDING
: IN REM
PROOF OF SERVICE
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
ss
David B. Reynolds, being duly sworn according to law, deposes and says that he is District Right-of-Way
Administrator of Engineering District 8-0, Department of Transportation, Commonwealth of Pennsylvania, and
that on or before May 16, 2000, notice of the filing of the declaration of taking in the above matter was served
on the condemnees affected thereby in compliance with Article IV, Section 405, of the Eminent Domain Code,
Act June 22, 1964, P.L. 84, as amended. A schedule of the condemnees so notified is attached hereto and made
pats hereof.
Sworn to and subscribed before me ?/2 2/0,?
c4Q?
Notary Public
Dis trict z of-Way Administrator
My Commission Expires: SFN.
LYNN A. CARRU NOty Pd* 2000
is,
DWI
.w
COMMONWEALTH OF PENNSYLVANIA
Rw437 (10/99) DEPARTMENT OF TRANSPORTATION
SCHEDULE OF PROPERTY CONDEMNED
(Declaration of Taking)
REMIS Pro'. No. 080039
Ccun Cumberland
Fed. Pro". No. 5-0131-115
Municipality Upper Allen Township
Route-Sec. 0015-A12
TYPE OF DESCRIPTION
D- Deed Description
P- Plan lodged for recording with Notice
of Condemnation -
R- Plan now recorded in Recorder's Office
Page 1
I &,
Parcel
No.
Claim
Number
Name, Mailing Address, Property
Interest of Condemnees, and
Location of Condemned Property Attached
Exhibit
Number
if an
'Type of
Description
Plan (if any)
Recorded in
37 21000330000 Carl E. Dallmeyer, A Married Man and R Cabinet 3, Drawer I
Kelly J. Dallmeyer. A Single Woman, as Page 130
Joint Tenants with the right of survivorship Sheets #57, 26, 28 & 31
4775 N. Sherman Street Ext.
Mt. Wolf, PA 17347
Location of Property
Deed Book 163, Page 659
40 21000430000 William F. Rothman. Charles F. Schubert R Cabinet 3. Drawer I
and Samuel L. Reed, Anna Bianco, Page 130
Incorporated, William F. Rothman, Sheets #21, 28. & 31
President
T/D/B/A Rothman, Schubert and Reed
Realtors
308 East Penn Drive
Enola. PA 17025
Location of Property
Deed Book Q-33, Page 1038
46 21000460000 Country Square Partnership, A R Cabinet 3• Drawer I
Pennsylvania General Partnership Page 130
Ashcombe Products Company, General Sheets #'-2 & 31
Partner
John S. Thornton, CEO
19 North Baltimore Street
Dillsburg, PA 17019
Location of Property
Deed Book 204, Page 1.146
57 21000490000 Alice R. Mountz, Single R Cabinet 3, Drawer 1
899 Emily Drive Page 130
Mechanicsburg, PA 17055 Sheets # 22 & 30
Location of Property
Deed Book 134, Page 259
i
c :b
C
L u ?
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION, OF THE
RIGHT-OF-WAY FOR STATE
ROUTE 0015, SECTION A12, A
LIMITED ACCESS HIGHWAY
IN THE TOWNSHIP OF UPPER
ALLEN
NO. 00-2824 CIVIL TERM
EMINENT DOMAIN
IN REM
PRELIMINARY OBJECTIONS OF
ROTHMAN, SCHUBERT AND REED, REALTORS
TO THE HONORABLE, JUDGES OF SAID COURT:
AND NOW COMES, the Condemnee, William F. Rothman, Charles F. Schubert, Samuel L.
Reed, and Anna Bianco, T/D/B/A Rothman, Schubert and Reed, Realtors, by and through its attorneys,
Coyne & Coyne, P.C., and files the within Preliminary Objections to the Declaration of Taking pursuant
to Section 406 of the Eminent Domain Act of 1964, as amended, and respectfully represents:
1. Condemnor is the Commonwealth of Pennsylvania, Department of Transportation
(herein after "PennDOT").
2. Condemnee is a partnership consisting of William F. Rothman, Charles F. Schubert and
Samuel L. Reed and Anna Bianco, Ud/b/a Rothman, Schubert and Reed, Realtors (hereinafter "RSR"), a
partnership with its business offices located at 308 East Penn Drive, Enola, Pennsylvania and is the
1
record and fee simple owner of the premises located in Upper Allen Township, Cumberland County,
Pennsylvania.
3. On December 1, 1987, RSR purchased the property at issue which is located in the
Commercial Convenience zoning district of Lower Allen Township.
4. On May 12, 2000, RSR was served a notice of Declaration of Taking concerning their
real estate generally refer-red to as 717 Lisburn Road, Mechanicsburg, Pennsylvania.
5. The Notice of Declaration provides for PennDOT to acquire a large portion of RSR's
property for use as a right-of-way and temporary construction easement for the development of a
"diamond interchange" between Lisburn Road and U.S. Route 15.
6. The proposed plan submitted by PennDOT completely landlocks RSR's property
allowing for no point of access to or exit from the property and as such results in a flawed design and a
defacto taking of the residual land without providing RSR with just compensation and therefore the plan
does not properly describe the property which is actually being acquired by PennDOT in this dejure and
defacto taking of RSR's property.
7. Since the formal filing of the declaration of taking, RSR has completed the application
for the pro tanto payment of estimated just compensation; however, to date no payment has been
forthcoming from PennDOT in accordance with the Eminent Domain Code.
8. RSR's property consists of a lot upon which there exists a single family home and a
detached garage which RSR has leased to tenants; however, prior to the Declaration of Taking being
filed, PennDOT, unbeknownst to RSR, approached RSR's tenant and directed them to vacate RSR's
property and made payment to the tenant's for their inconvenience.
2
9. RSR's tenants vacated the property at PennDOT's behest and therefore unilaterally
terminated RSR's lease without RSR's permission.
10. PennDOT has failed to compensate or offer to compensate RSR for the loss of rental
value for the property which has been vacant from March 1, 2000 and RSR has been unable to rent the
property since that time because of the notoriety of the pending construction project.
11. For the reasons set forth above, the said Declaration of Taking is void and of no effect
whatsoever and as a result thereof, title to said premises shall be deemed to vest in RSR to the same
extent as if no Declaration of Taking had been filed.
WHEREFORE, Rothman, Schubert and Reed, Realtors prays your Honorable Court to enter an
Order dismissing said Declaration of Taking, decreeing same to be void and of no effect whatsoever and
further decreeing that title to said premises shall vest in Rothman, Schubert and Reed, Realtors to the
same extent as if no Declaration of Taking had been filed.
Date: G -?-m
Respectfully submitted:
COYNE & COYNE, P.C.
By: ?
Lisa Marie Co Esquire
3901 Market Street
Camp Hill, PA 17011-4227
(717) 737-0464
Pa. Supreme Ct. No. 53788
Attorney for Condemnee-RSR.
3
The facts set forth in the foregoing are true and correct to the best of the undersigned's
knowledge, information and belief and are verified subject to the penalties for unswom
falsification to authorities under 18 Pa. C.S.A. §4904.
9° Cry lj"AA:
aAarIles IF-5 c 4 v 4 , PC ?nw /t s 2
CERTIFICATE OF SERVICE
I, Lisa Marie Coyne, hereby certify that true copy of Condemnee's Preliminary Objections was
served this date upon the below-referenced individuals at the below listed address by way of First class
mail, postage prepaid:
Stuart A. Liner, Esquire
Assistant Counsel, Office of Chief Counsel
Department of Transportation
P.O. Box 8212
Harrisburg, PA 17105-8212
Dated: 6 taV
is arie Coyne, quire
. Supreme Ct. No. 53788
Attorney for Condemnee-- RSR
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ba
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
OFFICE OF CHIEF COUNSEL
Christopher J. Clements, Asst Counsel in-Charge
Right of Way Section
Supreme Court LD.#44699
A O. Box 8212
HARRISBURG, PA 17105-8212
(717) 787-3128
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH,OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION
OF RIGHT OF WAY FOR S.R. 0015,
SECTION A12, A LIMITED ACCESS
HIGHWAY, IN THE TOWNSHIP
OF UPPER ALLEN
CIVIL ACTION -- LAW
WILLIAM R. ROTHMAN, CHARLES F.
SCHUBERT, SAMUEL L. REED and ANNA
BIANCO, Ud/b/a ROTHMAN, SCHUBERT &
REED, REALTORS,
Plaintiffs
V.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Defendant
PRAECIPE
TO THE PROTHONOTARY:
No. 00-2824 CIVIL TERM
EMINENT DOMAIN
PROCEEDINGS -- IN REM
Kindly enter my appearance on behalf of the condemnor, Commonwealth of
Pennsylvania, Department of Transportation, the defendant in the above-captioned matter.
OFFIC O SEL
I - / 1 oft
By:
Christoph . Clemen
Asst. Co el in-Charge
Attorney for the Defendant
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION
OF RIGHT OF WAY FOR S.R. 0015,
SECTION A12, A LIMITED ACCESS
HIGHWAY, IN THE TOWNSHIP
OF UPPER ALLEN
CIVIL ACTION -- LAW
WILLIAM R. ROTHMAN, CHARLES F.
SCHUBERT, SAMUEL L. REED and ANNA
BIANCO, t/d/b/a ROTHMAN, SCHUBERT &
REED,REALTORS,
Plaintiffs
No. 00-2824 CIVIL TERM
V.
COMMONWEALTH OF PENNSYLVANIA, EMINENT DOMAIN
DEPARTMENT OF TRANSPORTATION, PROCEEDINGS -- IN REM
Defendant
CERTIFICATE OF SERVICE
I certify that I am serving the foregoing document in the manner and upon the
personas set forth below, which service satisfies the requirements of Pa.R.C.P. 440:
BY FIRST CLASS MAIL:
Lisa Marie Coyne, Esq.
COYNE & COYNE, P.C.
3901 Market Street
Camp Hill, PA 17011-4227
OFFICE OF
By:,
Asst. CoutWel in-Charge
Attorney for the Defendant
Dated: June 13, 2000
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
CIVIL ACTION -- LAW
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION
OF RIGHT OF WAY FOR S.R. 0015,
SECTION A12, A LIMITED ACCESS
HIGHWAY, IN THE TOWNSHIP
OF UPPER ALLEN
WILLIAM R. ROTHMAN, CHARLES F.
SCHUBERT, SAMUEL L. REED and ANNA
BIANCO, t/d/b/a ROTHMAN, SCHUBERT &
REED, REALTORS,
Plaintiffs
No. 00-2824 CIVIL TERM
V.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Defendant
ORDER
EMINENT DOMAIN
PROCEEDINGS -- IN REM
AND NOW, this ,day of June, 2000, upon review of the Defendant/Condemnor's
Petition for Rule to Show Cause, Motion for Expedited Hearing and Motion to Consolidate
Similar Action, the Court enters the following:
1. A Rule is issued upon the Plaintiff/Condemnee to show cause why the preliminary
objections should not be dismissed.
2. The Motion for Expedited Hearing is GRANTED.
3. The Motion to Consolidate Similar Action is GRANTED. This case shall be
consolidated with the eminent domain case filed at No. 00-2856 for the purpose of resolving the
pending preliminary objections and the issue of possession, only.
ra ,
1 t-
p??fd5, r,
Rule returnable and hearing with respect to the Preliminary Objections is hereby
scheduled for .2 2000, at o'clock, gym., in Court Room No.
of the Cumberland County Courthouse, Carlisle, Pennsylvania.
BY THE COURT,
OY/
?O
0
va??.g
V
cc: Lisa Mane Coyne, Esq., Esq.
Christopher J. Clements, Esq.
2
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
OFFICE OF CHIEF COUNSEL
Christopher J. Clements, Asst Counsel in-Charge
Right of Way Section
Supreme CourtLD.#44699
A O. Box 8212
HARRISBURG, PA 17105-8212
(717) 787-3128
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE CIVIL ACTION -- LAW
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION
OF RIGHT OF WAY FOR S.R. 0015,
SECTION A12, A LIMITED ACCESS
HIGHWAY, IN THE TOWNSHIP
OF UPPER ALLEN
WILLIAM R. ROTHMAN, CHARLES F. No. 00-2824 CIVIL TERM
SCHUBERT, SAMUEL L. REED and ANNA
BIANCO, t/d/b/a ROTHMAN, SCHUBERT &
REED,REALTORS,
Plaintiffs
V.
COMMONWEALTH OF PENNSYLVANIA, EMINENT DOMAIN
DEPARTMENT OF TRANSPORTATION, PROCEEDINGS -- IN REM
Defendant
CONDEMNOR'S PETITION FOR RULE TO SHOW CAUSE
WHY PRELIMINARY OBJECTIONS SHOULD NOT BE
DISMISSED; MOTION FOR EXPEDITED HEARING;
MOTION TO CONSOLIDATE WITH SIMILAR ACTION
AND NOW, to wit, this 13th day of June, 2000, the Commonwealth of Pennsylvania,
Department of Transportation, defendant and condemnor, by its attorney, Christopher J.
Clements, Assistant Counsel in-Charge, Right of Way Section, respectfully represents as follows:
1
Count I. Petition for Rule to Show Cause.
On May 5, 2000, the condemnor filed a Declaration of Taking in the above-
captioned matter, attached hereto and made a part hereof as Exhibit A.
2. On or about June 9, 2000, William R. Rothman, Charles F. Schubert, Samuel L.
Reed and Anna Bianco, t/d/b/a Rothman, Schubert & Reed, Realtors, plaintiffs and condemnees
in this matter, filed preliminary objections to the declaration of taking alleging, inter alia:
a. That the within highway project has left a residual, landlocked parcel
resulting in a de facto taking of the same and that, thus, the declaration of taking is invalid (see
para. 6);
b. That certain pre-condemnation activities related to the Uniform Relocation
Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. §4601 et seq.,
conducted by the condemnor in relation to a residential tenant of the condemnee invalidate the
declaration of taking (see paras. 8-10);
C. That the condemnor has failed to pay just compensation for the taking and
that, therefore, the declaration of taking is invalid (see para. 10); and
d. That the condemnor has yet to pay to the condemnee a pro tanto payment
(known in the Commonwealth as an offer of estimated just compensation) even though the
condemnee "has completed the application" for the same (see para. 7)
To the extent that the condemnees raise facts relevant to the condemnor's
highway design asserting that it is "flawed" to leave a landlocked remainder (para. 6), such
assertion is contrary to law since the Department is vested with the discretion not to acquire such
landlocked parcels. 71 P.S. §513(e)(2)(i). The condemnees' preliminary objections must be
dismissed as their sole remedy is to file a petition for a board of view alleging a de facto taking
pursuant to Section 502(e) of the Eminent Domain Code of 1964, as amended, 26 P.S. § 1-502(e).
It must be noted that the condemnees do not assert an "excessive" taking of too much land but,
instead, seem to assert that the condemnor should have effected a total taking of all of their land.
This is, as well, an improper basis for preliminary objections since it represents 1) a design
engineering issue properly within the administrative discretion of the condemnor; and 2) an issue
for which an adequate remedy for just compensation exists to the extent that the condemnees can
file a petition for a board of view under the Eminent Domain Code. See 26 P.S. §1-502.
4. To the extent that the condemnees have set forth various challenges based upon
the issue of relocation assistance to a residential tenant (paras. 8-10), the scope of preliminary
objections under the Eminent Domain Code is limited, 26 P.S. §1-406, and challenges to issues
relating to relocation assistance are collateral and do not go to the power and right to condemn
under the Eminent Domain Code, as a matter of law. Accordingly, these allegations are legally
irrelevant and preliminary objections based upon this issue must be dismissed. Furthermore, any
issue concerning alleged lost rental income constitutes a matter concerning just compensation
and is beyond the scope of preliminary objections under the Code.
5. To the extent that the condemnees challenge the adequacy of just compensation
(para. 10), the scope of preliminary objections under the Eminent Domain Code is limited, 26
P.S. §1-406, and challenges to the adequacy of the just compensation offered by a condemnor are
not proper preliminary objections as a matter of law. Condemnees' constitutional rights to just
compensation are adequately protected by the right to petition for a board of view under the
Eminent Domain Code. See 26 P.S. §1-502.
6. Finally, as alleged in para. 7, the condemnees have applied for estimated just
compensation and the matter has been placed in-line for payment in the amount of $106,300.00. .
See Exhibit B. Astoundingly, said application is actually legally inconsistent with the filing of
preliminary objections challenging the declaration of taking and seeking to divest the condemnor
of legal title! Quite obviously, the condemnees' application for payment pro tanto is evidence of
the condemnees' desire to relinquish possession of the condemned lands to the condemnor,
pursuant to Section 407 of the Eminent Domain Code, 26 P.S. § 1-407. Such conduct is more
consistent with a petition for a board of view alleging a de facto condemnation then the filing of
preliminary objections to a declaration of taking and actually amounts to an admission by the
condemnees that their preliminary objections are without merit..
Count H. Motion for Expedited Hearing
7. Paragraphs 1 through 6, above, are incorporated by reference herein and made a
part hereof.
4
8. Section 406(e) of the Eminent Domain Code, 26 P.S. §1-406(e), provides that the
court shall determine promptly all preliminary objections to a declaration of taking.
9. The condemnor is ready to move toward the construction of a major and much-
needed transportation safety improvement project at the intersection of Lisburn Road and S.R.
0015 by the end of June, 2000.
10. Time is of the essence, since highway construction projects in the Commonwealth
are impacted by seasonal conditions. The letting date is June 29, 2000; a highway project cannot
be let while preliminary objections are pending.
11. Preliminary objections delay possession of property needed for the project and,
consequently, potentially result in the loss if an entire construction season, leading to cost over-
runs and, more critically, unnecessarily depriving the public of a timely and much-needed
transportation safety improvement project.
12. Condemnees have little likelihood of success on the merits of the within
preliminary objections, as they are beyond the scope of proper preliminary objections under the
Code and their objections constitute, primarily, a disagreement as to the amount of just
compensation owed. The condemnees have an adequate remedy of a petition for a board of view
on this issue and, otherwise, will not be prejudiced in any way by a prompt rule to show cause
and expedited hearing.
13. The condemnor will provide all facts and data relevant to the highway design
impacting the condemnees' property promptly at the request of the condemnees and is prepared
to produce the same at a prompt hearing along with all necessary witnesses.
Count III. Motion to Consolidate with Similar Action
14. Paragraphs 1 through 13, above, are incorporated by reference herein and made a
part hereof.
15. Counsel for the condemnees herein, Lisa Marie Coyne, Esquire, is also counsel
for UNICO Corporation, a condemnee in a declaration of taking filed in Cumberland County on
May 8, 2000, at No. 00-2856. Counsel for condemnees has filed preliminary objections in
Cumberland County on behalf of UNICO Corporation raising the same or similar issues as the
preliminary objections filed to the within declaration of taking of condemnees' property.
16. The highway project is the same in both cases, both properties are located at the
same intersection scheduled to be reconstructed into a limited access interchange and the
condemnor's defenses to the preliminary objections are the same or similar in each case.
Testimony and evidence, if any, regarding the highway project from the condemnor would be
offered regarding both cases from the same witnesses and documents.
6
17. In the interests of justice and judicial economy, these cases can be consolidated.
The condemnees in these cases would not be prejudiced from a consolidated action.
WHEREFORE, for all of the foregoing reasons, the Commonwealth of Pennsylvania,
Department of Transportation, condemnor respectfully requests this Honorable Court to promptly
issue a rule to show cause upon the condemnee as to why the preliminary objections should not
be dismissed, to grant the Department's motion for an expedited hearing scheduling the same
promptly for review by the Court and to grant the Department's motion to consolidate this action
with the similar action in eminent domain currently pending at No. 00-2856.
Respectfully submitted,
OFFICE OF I
By:
Asst.
in-Charge
Attorney for the Condemnor
7
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE CIVIL ACTION -- LAW
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION
OF RIGHT OF WAY FOR S.R. 0015,
SECTION A12, A LIMITED ACCESS
HIGHWAY, IN THE TOWNSHIP
OF UPPER ALLEN
WILLIAM R. ROTHMAN, CHARLES F. No. 00-2824 CIVIL TERM
SCHUBERT, SAMUEL L. REED and ANNA
BIANCO, t/d/b/a ROTHMAN, SCHUBERT &
REED, REALTORS,
Plaintiffs
V.
COMMONWEALTH OF PENNSYLVANIA, EMINENT DOMAIN
DEPARTMENT OF TRANSPORTATION, PROCEEDINGS -- IN REM
Defendant
CERTIFICATE OF SERVICE
I certify that I am serving the foregoing document in the manner and upon the
person as set forth below, which service satisfies the requirements of Pa.R.C.P. 440:
BY FIRST CLASS MAIL:
Lisa Marie Coyne, Esq.
COYNE & COYNE, P.C.
3901 Market Street
Camp Hill, PA 17011-4227
OFFICE OF
By:
Attorney for the Defendant
Dated: June 13, 2000
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION, OF THE
RIGHT-OF-WAY FOR STATE
ROUTE 0015, SECTION A12, A
LIMITED ACCESS HIGHWAY IN
THE TOWNSHIP OF UPPER ALLEN
NO. !)O - a 5:a q CK.wf
n r-)
EMINENT DOMAIN PROCI INO
IN REM
DECLARATION OF TAKING -` `r
TO THE HONORABLE, THE JUDGES OF-THE SAID COURT:
This Declaration of Taking, based on the provisions of Article IV, Section 402, of
the Eminent Domain Code, Act of June 22, 1964, P. L. 84, 26 P. S. 1-402, as amended,
respectfully represents that:
1. The Condemnor is the Commonwealth of Pennsylvania, Department of
Transportation, acting through the Secretary of Transportation.
2. The address of the Condemnor is:
Commonwealth of Pennsylvania
Department of Transportation
Office of Chief Counsel
P.O. Box 8212
Harrisburg, PA 17105-8212
3. The Department of Transportation is authorized by the provisions of
Section 2003(e) of the Administrative Code of 1929, P. L. 177, 71 P. S. 513(e), as
amended, to acquire by gift, purchase, condemnation or otherwise, land in fee simple or
such other estate or interest as it shall determine, in the name of the Commonwealth for
all transportation purposes.
i
EXHIBIT
r?
-17
i
4. The within condemnation has been authorized by a plan signed by the
Secretary of Transportation on February 18, 2000, entitled "Drawings Establishing and
Re-establishing a Limited Access Highway Authorizing Acquisition of Right-of-Way for
State Route 0015, Section A12 R/W in Cumberland County, and State Route 2004, " a
copy of which plan was filed in the County Recorder's Office in Cabinet 3, Drawer 1 at
Page 130 on March 10, 2000.
5. The purpose of the within condemnation is to acquire property for
transportation purposes.
6. A Schedule of Property Condemned identifying and specifying the
location of the property hereby condemned is attached hereto and made a part hereof.
7. Plans showing the property hereby condemned may be inspected in the
Recorder's Office of the aforesaid County at the places indicated on the attached
Schedule of Property Condemned or, if not shown thereon, on the day of the filing of this
document being lodged for record or filed in said Recorder's Offices, where they may be
inspected.
8. The nature of the title hereby condemned is fee simple and a temporary
constuction easement.
9. In the event there are recoverable minerals (including gas and oil) within
the areas, if any, hereby condemned in fee simple, the mineral rights (including rights to
gas and oil) in those areas are hereby excepted and reserved from this condemnation,
provided however, that the right of support of the areas condemned is included within the
scope of this condemnation, and no access from the surface of such areas for removal
purposes will be allowed without permission from the Commonwealth.
10. The payment of just compensation in this matter is secured by the
Commonwealth's power of taxation.
it. I, Gary C. Fawver, P.E., Chief, Right of Way and Utilities Division, of the
Department of Transportation, do hereby depose, swear and affirm that I am authorized
by and do hereby execute this Declaration of Taking on behalf of the Commonwealth of
Pennsylvania, Department of Transportation, and that the averments contained and set
forth herein are true and correct to the best of my knowledge, information and belief, and
are made subject to penalties provided in 18 Pa. C. S. §4904, relating to false swearing to
authorities.
WHEREFORE, fee simple title and a temporary constuction easement are hereby
condemned from the properties identified on the attached Schedule of Property
Condemned, as indicated on the plans referenced in paragraph 7 above.
Chief, Right of Way and Utilities Division
COMMONWEALTH OF PENNSYLVANIA
RW437(10/99) DEPARTMENT OF TRANSPORTATION
SCHEDULE OF PROPERTY CONDEMNED
(Declaration of Taking)
REMIS Pro'. No. 080039
Count Cumberland
Fed. Pro''. No. Q05-0131-115
Municipality Upper Allen Township
Route-Sec. 0015-A 12
TYPE OF DESCRIPTION
D- Deed Description
P- Plan lodged for recording with Notice
of Condemnation
R- Plan now recorded in Recorder's Office
Page I
Parcel
No.
Claim
Number
Name, Mailing Address, Property
Interest of Condemnees, and
Location of Condemned Pro a Attached
Exhibit
Number
if an
Type of
Description
Plan (if any)
Recorded in
37 21000330000 Carl. E. Dallmeyer, A Married Man and R Cabinet 3, Drawer I
Kelly J. Dallmeyer, A Single Woman, as Page 130
Joint Tenants with the right of survivorship Sheets #57, 26, 28 & 31
4775 N. Sherman Street Ext.
Mt. Wolf, PA 17347 -
Location of Property
Deed Book 163, Page 659
40 2100043,0000 William F. Rothman. Charles F. Schubert R Cabinet 3, Drawer I
and Samuel L. Reed, Anna Bianco, Page 130
Incorporated, William F. Rothman, Sheets #21, 28, & 31
President
'17D/B/A Rothman, Schubert and Reed
Realtors
308 East Penn Drive
Enola. PA 17025
Location of Property
Deed Book Q-33, Page 1038
46 21000460000 Country Square Partnership, A R Cabinet 3, Drawer I
Pennsylvania General Partnership Page 130
Ashcombe Products Company, General Sheets # 22 & 31
Partner
John S. Thornton, CEO
19 North Baltimore Street
Dillsburg, PA 17019
Location of Property
Deed Book 204, Page 1146
57 21000490000 Alice R. Mountz, Single R Cabinet 3, Drawer 1
899 Emily Drive Page 130
Mechanicsburg, PA 17055 Sheets # 22 & 30
Location of Property
Deed Book 134, Page 259
R W448 (07/99)
r
REMIS Pro'. N 080039 d9
Count CUMBERLAND
Fed. Pro'. No. 005-0131-115
Route-Sec. 0015-A12 APPLICATION FOR ?y
Claim No. 21000430000 PAYMENT OF ESTIMATED r
Claimant ROTHMAN, SCHUBERT, & REED REALTORS JUST COMPENSATION
Property Address
I 717 Lisburn Road
Mechanicsburg, Penna 17055
IN RE: CONDEMNATION BY THE COMMONWEALTH OF IN THE COURT OF COMMON PLEAS OF
PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, CUMBERLAND COUNTY, PENNSYLVANIA
OF RIGHT OF WAY FOR STATE ROUTE 0015, SECTION NO. 00-2824 Civil Term
A12, A LIMITED ACCESS HIGHWAY, IN THE TOWNSHIP EMINENT DOMAIN PROCEEDINGS
OF UPPER ALLEN
-
Date of Application: 5
131 loo
1. Application is hereby made for payment of One Hundred and Six Thousand, Three Hundred Dollars and 00/100
($106,300) Dollars, the amount estimated by the COMMONWEALTH to constitute just compensation for damages
which will accrue to the above property (or the interest of the APPLICANT(S) therein) as a result of the above
condemnation. In accordance with Section 407 of the Eminent Domain Code of 1964, the aforesaid payment will be
made and received without prejudice to the rights of either the COMMONWEALTH or the APPLICANT(S) to proceed
to a final determination of just compensation by filing a petition for the appointment of viewers within five years of the
date of this payment. The payment shall be considered only as payment pro-tanto of just compensation as finally
determined, it being understood that the COMMONWEALTH shall pay to the APPLICANT(S) the difference between
the aforesaid amount and any higher amount which may be finally determined.
2. The COMMONWEALTH does not require actual physical possession of the property until either the start of
construction or written notice that possession is required (whichever occurs earlier) and until such time, APPLICANT(S)
remain(s) in possession with the right to use the property in such manner as will not result in physical or other change
to the contour or nature of the property, further APPLICANT(S) shall not erect or install any improvements on the
property. A
INDIVIDUAL //PA/R'?'NER)tH
ss /,v (SEAL)
Witne Il
Witness ??????......,,,, )
Witness c\ A AZrX- dc Zt(SEAL)
Witness (SEAL)
CORPORATION, ASSOCIATION, CLUB, ETC.
I attest to the signature of the officer who has
executed this agreement and certify that execution
hereof has been duly authorized by the
of
(SEAL) TaA
SL (/LPL " ?? P
COMMONWEALTH OF PENNSYLVANIA
RW943 (07/99) DEPARTMENT OF TRANSPORTATION
REMIS Pro'. No. 080039
County Cumberland
Fed. Proj. No. Q05-0131-115
Route-Sec. 0015-A12
Parcel No. 40
Claim No. 21000430000
-
-
Claimant's F.I.D. 23-19
95339
Claimant of man, Schubert &
Reed Realtors
Date: cl?/e /)
To: Chief Right-of-Way wand Utilities Division
P.O. Box 3362 - Forum Place 7" Floor
Harrisburg, PA 17101-3362
RECEIVED
Dept. of Tw nsrortation
d ;f d 700,10
Cost
Function
Description Part.
Code Serial
No.
Pay No.
Amount
1101 Payment of E.J.C. 1 08RO39 ®e $80,550.00
1103 Tax Proration 1 088039 Q $ 295.93
1111 Amt. Alloc'D for Severance 1 08RO39 Q $25,000.00
1116 Temporary Easement 1 08RO39 00 $ 750.00
$
$
N lS, ,
lam $
r
.'.i -
$
'Total $ 106,595.93
Attachments: R/W-448, 313, 313T and 918
Agent's Name: Michael E. Foutz Telephone: 7-5035
Comments:
G wl/
PAYMENT TRANSMITTAL
From: Right-of-Way Administrator
A
R W 313 (10/99)
REMIS Proj No 080039
County CUMBERLAND
Fed. Proj. No. 05-0131-115
Route-Sec. 0015-A12
Claim No. 21000430000
Claimant Rothman, Schubert, and
Reed Realtors
SETTLEMENT STATEMENT
Estimated Just Compensation
0 loo 0
loft
I PROJECTED DISTRIBUTION DATE
Date: _5_/3//,,0
ADDRESS OF CLAIMANT(S) LOCATION (ADDRESS) OF PROPERTY CLAIMANT'S ATTORNEY AND ADDRESS
308 EAST PENN DRIVE 717 LISBURN ROAD NONE
ENOLA, PENNA. 17025 MECHANICSBURG, PENNA. 17055
ATTN: William F. Rothman, CEO
Estimated Just Compensation
Commonwealth's Pro-Rata Share of Current Realty Taxes
Mortgage Pre-Payment Penalty
Mortgage Satisfaction Fee
Less Monies Previously Paid
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
$106,300.00
Actual $295.93
Less Monies Credited for Owner Retained Items
Withheld Pending Building Removal by Owner
Total Available for Distribution
CHARGES:
Mortgage(s):
Mortgagee:
Principal:
Interest (to date: )
Pre-Payment Penalty*:
Satisfaction Fee*:
Unpaid Current Taxes:
Claimant(s) Pro-Rata Share
Commonwealth's Pro-Rata Share*
TOTAL 0.00
Liens and/or Delinquent Taxes and Municipal Claims:
Judgment(s):
TOTAL CHARGES _ 0.00
*Paid b Pennsylvania Department of Transportation
minus Total charges
$0.00
$106,595.93
$0.00
Balance Due Claimant(s) $106,595.93
RW313 (10/99) 2 of 2
Witness
CORP., ASSOC., CLUB, ETC
I attest to the signature of the officer who has executed
this agreement and certify that execution thereof has
been duly authorized by
BOARD OF DIRECTORS, MAJORITY VOTE OF ASSOC., ETC
/ La L
Signature
of
(SEAL)
REED REAL'
Real Estate Specialist
Title
Date - S/3 / ?/o 6
The distribution of funds as shown on the reverse hereof is approved and the "Balance Due Claimant(s)" is acknowledged to be
correct. I hereby acknowledge receipt of a copy of this settlement statement.
I Hereby Certify That The Information On This Form Is True And Correct, According To The Records Of The Pennsylvania
Department Of Transportation.
RIW-313T (11/94) COMMONWEALTH OF PENNSYLVANIA
DEPARTMENTOF TRANSPORTATION
'
COUNTY
??a Nth/'
ST. PROD. NO.
FED. PR0j. NO, //S-
PARCEL O. y o
CLAIM O. 2 000' 3,1000
CLAIMANT /90 !/nr- S-.r-e6V ? /J?'A
.?fifc3vy
PRORATION OF REAL ESTATE TAXES
(COMMONWEALTH'S SHARE)
a an.?
?t
w? 3x
1 i)
r
r _
DATE OF EXECUTION OF DEED OR DECLARATION OF TAKING 5 } ?O DATE OF POSSESSION
1. MUNICIPAL OR TOWNSHIP TAXES (CALENDAR YEAR - JANUARY 1 THRU DECEMBER 31)
DS XF XM$ =XS
BS
2. COUNTY TAXES (CALENDAR YEAR - JANUARY 1 THRU DECEMBER 31)
D S X F ?58 X M$ 2/9. 35'
BS
3. SCHOOL TAXES -(FISCAL YEAR - JULY 1 THRU JUNE 30)
=XS / V3.`7
DS XF XMS =X$ BS
TOTAL OF COMMONWEALTH'S SHARE OF REAL ESTATE TAXES ..............................$ ZIS• f j
COMPUTED BY 0. *y97
In counties where school taxes are normally calculated on a calendar year, or if school districts of 2nd. 3rd or
4th class have voted to change the tax year to the calendar year, all taxes should be combined in equation =1.
NOTE: FOR TOTAL TAKES, ELIMINATE D IN THE EQUATION.
B
SYMBOLS
D = DAMAGES • (TAKEN FROM PAGE 1 OF APPROVED APPRAISAL)
B = BEFORE VALUE (TAKEN FROM PAGE 1 OF APPROVED APPRAISAL)
F = FACTOR FOR DATE OF DEED OF EASEMENT, DECLARATION OF TAKING, OR
POSSESSION, WHICHEVER IS EARLIER, FROM THE APPROPRIATE FACTOR TABLE
M = TOTAL AMOUNT OF MUNICIPAL OR TOWNSHIP TAXES
C = TOTAL AMOUNT OF COUNTY TAXES
S = TOTAL AMOUNT OF SCHOOL TAXES
X = COMMONWEALTH'S SHARE OF MUNICIPAL OR TOWNSHIP TAXES.
Y = COMMONWEALTH'S SHARE OF COUNTY TAXES.
Z = COMMONWEALTH'S SHARE OF SCHOOL TAXES.
EXHIBIT NO. 1
'JUN 2 0 2000
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
CIVIL ACTION -- LAW
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION
OF RIGHT OF WAY FOR S.R. 0015,
SECTION A12, A LIMITED ACCESS
HIGHWAY, IN THE TOWNSHIP
OF UPPER ALLEN
WILLIAM R. ROTHMAN, CHARLES F.
SCHUBERT, SAMUEL L. REED and ANNA
BIANCO, t/d/b/a ROTHMAN, SCHUBERT &
REED, REALTORS,
Plaintiffs
No. 00-2824 CIVIL TERM
V.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Defendant
EMINENT DOMAIN
PROCEEDINGS -- IN REM
RULE TO SHOW CAUSE
AND NOW, this may of June, 2000, upon review of the Defendant/Condemnor's
Petition for Writ of Possession, a Rule is issued upon the Plaintiffs/Condemnees to show cause
why possession should not be granted.
Rule returnable for legal argument and the taking of testimony or evidence, in the Court's
discretion, with respect to the Writ of Possession is hereby scheduled for a
47
2000, at q:30 o'clock, in Court Room No. ?, of the Cumberland County
Courthouse, Carlisle, Pennsylvania.
BY THE COURT,
cc: Lisa Marie Coyne, Esq., Esq.
Christopher J. Clements, Esq. n 00
/W
PIENNS1'UIN,11A
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION
OF RIGHT OF WAY FOR S.R. 0015,
SECTION A12, A LIMITED ACCESS
HIGHWAY, IN THE TOWNSHIP
OF UPPER ALLEN
WILLIAM R. ROTHMAN, CHARLES F.
SCHUBERT, SAMUEL L. REED and ANNA
BIANCO, t/d/b/a ROTHMAN, SCHUBERT &
REED,REALTORS,
Plaintiffs
V.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Defendant
ORDER
CIVIL ACTION -- LAW
No. 00-2824 CIVIL TERM
EMINENT DOMAIN
PROCEEDINGS -- IN REM
AND NOW, this _ day of June, 2000, upon review of the Defendant/Condemnor's
Petition for Writ of Possession, the Court enters the following:
That the Plaintiffs/Condemnees herein have applied for their payment of
estimated just compensation in this case.
2. That the preliminary objections filed in this case are not of the type warranting
delay.
AND NOW, WHEREFORE, the request of the Defendant/Condemnor for possession is
GRANTED, subject to the following:
1. That the Defendant/Condemnor shall have the right to possession of the
condemned property upon payment of the estimated just compensation in the amount of
$106,300.00.
2. That said possession shall be of the lands as indicated on the
Defendant/Condemnor's recorded right of way plan, subject only to a modification of said plans
to either require access to a landlocked parcel, or to effectuate a total taking of the same, through
the process of ascertaining whether an alleged de facto taking has occurred.
3. The parties hereto shall retain all claims and defenses with regard to the issue of
the alleged de facto taking.
BY THE COURT,
cc: Lisa Marie Coyne, Esq., Esq.
Christopher J. Clements, Esq.
2
COMMONWEALTH OF PE N NS YL VA NL 4
DEPARTMENT OF TRANSPORTATION
OFFICE OF CHIEF COUNSEL
By. Christopher J. Clements
Assistant Counsel in-Charge
Supreme CourtLD.## 44699
P. O. Box 8212
Harrisburg, PA 17105-8212
(717) 787-3128
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE CIVIL ACTION -- LAW
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF RIGHT-OF-WAY FOR S.R. 0015,
SECTION A12, A LIMITED ACCESS
HIGHWAY, IN THE TOWNSHIP OF
UPPER ALLEN
WILLIAM R. ROTHMAN, CHARLES F. No. 00-2824 CIVIL TERM
SCHUBERT, SAMUEL L. REED and ANNA
BIANCO, t/d/b/a ROTHMAN, SCHUBERT &
REED,REALTORS,
Plaintiff
V.
COMMONWEALTH OF PENNSYLVANIA, EMINENT DOMAIN
DEPARTMENT OF TRANSPORTATION, PROCEEDINGS--IN REM
Defendant
PETITION FOR WRIT OF POSSESSION
AND NOW, to wit, this 20TH day of June, 2000, the Commonwealth of Pennsylvania,
Department of Transportation, defendant and condemnor, by its attorney, Christopher J.
Clements, Assistant Counsel in-Charge, Right of Way Section, respectfully represents as follows:
1
1. On May 5, 2000, the condemnor filed a Declaration of Taking in the above-
captioned matter.
2. On or about June 9, 2000, William R. Rothman, Charles F. Schubert, Samuel L.
Reed and Anna Bianco, t/d/b/a Rothman, Schubert & Reed, Realtors, plaintiffs and condemnees
in this matter, filed preliminary objections to the declaration of taking.
3. In their preliminary objections, at para. 7, the condemnees acknowledged that it
has "completed the application" to the condemnor for a payment pro tanto (known in the
Commonwealth as an offer of estimated just compensation).
4. Department records validate this fact, showing that the condemnees have applied
for estimated just compensation in the amount of $106,300.00. See Exhibit A. Department
records indicate and it is believed, and therefore respectfully averred, that condemnees' payment
application had been processed by the Comptroller for the Commonwealth on or about June 16,
2000, and that delivery of the check is expected the week of June 26 to June 30.
5. Legal title to property condemned under the Eminent Domain Code vests in the
condemnor at the time a declaration of taking is filed. 26 P.S. § 1-406. The condemnees have
alleged a de facto taking prior to the filing of the declaration of taking in this case, a fact which
the condemnor disputes. Caselaw indicates that the condemnees must file preliminary objections
in such an instance at the risk of waiver. Nelis v. Redevelopment Authority of Alle eny
Coun 315 A.2d 893 (Pa.Cmwlth., 1974). In either event, however, the condemnor has
acquired legal title and has a right to possession upon payment of the estimated just
compensation, 26 P.S. §1-407.
6. Caselaw provides that not all preliminary objections warrant delay. West
Whiteland Associates v. Department of Transportation, 690 A.2d 1266 (Pa.Cmwlth., 1997). The
preliminary objections in this case that have colorable merit (de facto taking prior to the filing of
a declaration of taking), even if subsequently proved, do not warrant delay but, instead, "would
require nothing more than correction of the plot plans and property plat". Id. 690 A.2d at 1270.
7. The remaining grounds for preliminary objection are specious and entirely without
merit:
a. Flawed Highway Design -- The condemnees cannot prove, and have even failed
to allege, fraud, bad faith and capriciousness, arbitrariness or unreasonableness sufficient to
permit this Court to interfere with the choice of design to be taken by required right of way under
the exercise of eminent domain. In Re Condemnation by Penn Township, 702 A.2d 614, 618
(Pa.Cmwlth., 1997).
b. Pursuit of Relocation of Residential Tenants/Payment for "Lost Rents" -- This
issue refers to matters collateral to the right and power to acquire property, see He¢edic v.
Department of Transportation, 304 A.2d 181 (Pa.Cmwlth., 1973), as well as to issues relating to
the ultimate issue of a determination of just compensation, In Re Condemnation by Penn
Township, 702 A.2d at 617 n.2, both of which are beyond the scope of preliminary objections
under the Eminent Domain Code.
WHEREFORE, for all of the foregoing reasons, since the condemnees have applied for
their payment of just compensation in this case, and since the preliminary objections are not of
the type warranting delay, the Commonwealth of Pennsylvania, Department of Transportation,
respectfully requests this Honorable Court to enter the attached order granting to the Department
possession of the condemned property upon payment of the estimated just compensation in the
amount of $106,300.00, said possession of the lands as indicated on the Department's recorded
right of plan, subject only to a modification of said plans to either require access to a landlocked
parcel, or to effectuate a total taking of the same, through the process of ascertaining whether a
de facto taking has occurred, the parties retaining all claims and defenses with regard to such
issue.
Respectfully submitted,
OFFICE OF
By:,
4
Attorney for the Condemnor
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION
OF RIGHT OF WAY FOR S.R. 0015,
SECTION A12, A LIMITED ACCESS
HIGHWAY, IN THE TOWNSHIP
OF UPPER ALLEN
CIVIL ACTION -- LAW
UNICO CORPORATION,
Plaintiff
V.
No. 00-2856 CIVIL TERM
COMMONWEALTH OF PENNSYLVANIA, EMINENT DOMAIN
DEPARTMENT OF TRANSPORTATION, PROCEEDINGS -- IN REM
Defendant
CERTIFICATE OF SERVICE
I certify that I am serving the foregoing document in the manner and upon the
person as set forth below, which service satisfies the requirements of Pa.R.C.P. 440:
BY FIRST CLASS MAIL:
Lisa Mane Coyne, Esq.
COYNE & COYNE, P.C.
3901 Market Street
Camp Hill, PA 17011-4227
OFFICE OF CHIEF
Asst. Cou#Xel in-Charge
Attorney for the Defendant
Dated: June 20, 2000
RW448 (07199)
BEMIS Pro'. No. 080039
Count CUMBERLAND
Fed, Pro'. No. 005-0131-115
Route-Sec. 0015-A12 APPLICATION FOR i
Claim No. 210004 PAYMENT OF ESTIMATED y
Claimant ROTHMAN, SCHUBERT, & REED REALTORS JUST COMPENSATION
Property Address
I 717 Lisburn Road
Mechanicsburg. Penns 17055
IN RE: CONDEMNATION BY THE COMMONWEALTH OF IN THE COURT OF COMMON PLEAS OF
PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, CUMBERLAND COUNTY, PENNSYLVANIA
OF RIGHT OF WAY FOR STATE ROUTE 0015, SECTION NO. 00-2824 Civil Term
At 2, A LIMITED ACCESS HIGHWAY, IN THE TOWNSHIP EMINENT DOMAIN PROCEEDINGS
OF UPPER ALLEN
Date of Application: s'13" loo
1. Application is hereby made for payment of One Hundred and Six Thousand, Three Hundred Dollars and 00/100
($106,300) Dollars, the amount estimated by the COMMONWEALTH to constitute just compensation for damages
which will accrue to the above property (or the interest of the APPLICANT(S) therein) as a result of the above
condemnation. In accordance with Section 407 of the Eminent Domain Code of 1964, the aforesaid payment will be
made and received without, prejudice to the rights of either the COMMONWEALTH or the APPLICANT(S) to proceed
to a final determination of just compensation by filing a petition for the appointment of viewers within five years of the
date of this payment. The payment shall be considered only as payment pro-tanto of just compensation as finally
determined; it being understood that the COMMONWEALTH shall pay to the APPLICANT(S) the difference between
the aforesaid amount and any higher amount which may be finally determined
2. The COMMONWEALTH does not require actual physical possession of the property until either the start of
construction or written notice that possession is required (whichever occurs earlier) and until such time, APPLICANT(S)
remain(s) in possession with the right to use the property in such manner as will not result in physical or other change
to the contour or nature of the property, further APPLICANT(S) shall not erect or install any improvements on the
property- A
/ INDIVIDUAL //PA?t'?NERSH
Witness ,? (SEAL)
Witness?
Witness w l? t t f 2u -c SEAL)
Witness (SEAL)
CORPORATION, ASSOCIATION, CLUB, ETC.
I attest to the signature of the officer who has
executed this agreement and certify that execution
hereof has been duly authorized by the
BOARD OF DIRECTOR& MAJORITY VOTE OF ASSOC.. ETC.
(SEAL)
of
EXHIBIT
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION
OF RIGHT OF WAY FOR S.R. 0015,
SECTION A12, A LIMITED ACCESS
HIGHWAY, IN THE TOWNSHIP OF
UPPER ALLEN
WILLIAM R. ROTHMAN, CHARLES F
SCHUBERT, SAMUEL L. REED and
ANNA BIANCO, t/d/b/a ROTHMAN,
SCHUBERT & REED, REALTORS,
Plaintiffs
V.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Defendant.
NO. 00-2824 CIVIL TERM
CIVIL ACTION-LAW
IN REM-EMINENT DOMAIN
PLAINTIFFS' REPLY TO DEFENDANT'S PETITION FOR
WRIT OF POSSESSION
AND NOW COMES, the Plaintiffs/Condemnees, ROTHMAN, SCHUBERT &
REED, REALTORS, by and through their attorney, Lisa Marie Coyne, and respectfully replies
as follows to Defendant's Petition for Writ of Possession:
1. Admitted. Furthermore, condemnor served condemnees notice of Declaration
of Taking on or about May 12, 2000.
2. Admitted.
3. Admitted.
s'
4. Admitted. Furthermore, condemnees received the estimated just compensation
on Monday, June 26, 2000.
5. Denied. This is legal argument and conjecture to which no response is required
and therefore same is denied.
6. Denied. This is legal argument to which no response is required and therefore
same is denied.
7. a. Denied. This is legal argument to which no response is required and
therefore same is denied.
b. Denied. This is legal argument to which no response is required and
therefore same is denied.
WHEREFORE, Plaintiffs respectfully requests this Honorable Court to deny
Defendant's Petition for Writ of Possession.
Respectfully submitted:
COYNE & COYNE, P.C.
Dated: 21-Tua?d By: tw
isa Marie Co} e, Esquire
3901 Market eet
Camp Hill, PA 17011-4227
(717) 737-0464
Pa. Supreme Ct. No. 53788
Attorney for Plaintiffs
CERTIFICATE OF SERVICE
I certify that I am serving the foregoing document by way of fax and personal service
upon the following individual:
William Cressler, Esquire
Office of Chief Counsel
Department of Transportation
P.O. Box 8212
Harrisburg, PA 17105
Fax No.: 772-2741
Date: .21''u y OV
a Marie Coyne, E quire
?moo--'e??u ?xrert+?tpn?+.mu§wwbevcaemnelr?; x,?im? """'""Y?1 1YFtiaiMEMInNYWb: '?v
ice. ,'Yy
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IN RE: CONDEMNATION BY
THE COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION OF
RIGHT OF WAY FOR
S.R. 0015, SECTION A12,
A LIMITED ACCESS
HIGHWAY, IN THE
TOWNSHIP OF UPPER ALLEN
WILLIAM R. ROTHMAN,
CHARLES F. SCHUBERT,
SAMUEL L. REED and
ANNA BIANCO, t/d/b/a
ROTHMAN, SCHUBERT & REED,:
REALTORS,
Plaintiffs
V.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACITON - LAW
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION,
Defendant No. 00-2824 CIVIL TERM
ORDER OF COURT
AND NOW, this 28th day of June, 2000, upon
consideration of the Condemnees' preliminary objections in
the above-captioned matter, and of the Condemnor's petition
for writ of possession, and pursuant to an agreement
reached in open court in which the Condemnnor was
represented by William J. Cressler, Esquire, and Donald J.
Smith, Esquire, and the Condemnees were represented by Lisa
Marie Coyne, Esquire, it is ordered and directed as
follows:
The Department's request for writ of
possession is granted upon consent of Plaintiffs.
i=H ?r,-urFiCC
)NOTARY
00 JUL -3 AEA 10: 41
CU; IL-kL,'V'ru COUNTY
PENNSYI_VAi A
y
vim' f
-. _ _ .. _ cmnue, m?meFw'.esaaa 4?
1 ~•
Plaintiffs further agree to withdraw the preliminary
objections in that a total settlement has been reached by
the parties.
William J. Cressler, Esquire
Donald J. Smith, Esquire
Assistant Counsel
Office of Chief Counsel
Department of Transportation
Commonwealth of Pennsylvania
Forum Place, 9th Floor
555 Walnut Street
Harrisburg, PA 17101-1900
For the Condemnor
Lisa Marie Coyne, Esquire
3901 Market Street
Camp Hill, PA 17011-4227
For the Condemnees
wcy
'7- OD
By the Court,
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION, OF THE
RIGHT-OF-WAY FOR STATE
ROUTE 0015, SECTION A12, A
LIMITED ACCESS HIGHWAY
IN THE TOWNSHIP OF UPPER
ALLEN
WILLIAM R. ROTHMAN, CHARLES : No. 00-2824 Civil Action-- Law
F. SCHUBERT, SAMUEL L. REED AND
ANNA BIANCO, t/d/b/a ROTHMAN,
SCHUBERT & REED, REALTORS,
Plaintiff-Condemnee
V.
COMMONWEALTH OF PENNSYLVANIA, : Eminent Domain Proceedings-IN REM
DEPARTMENT OF TRANSPORTATION, :
Defendant-Condemnor
TO THE PROTHONOTARY:
Kindly mark this action settled, discontinued, and ended.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
PRAECIPE
COYNE & COYNE, P.C.
Dated:
By: I It -
Lisa Marie C " e, Esquire
3901 Market Street
Camp Hill, PA 17011-4227
(717) 737-0464
Pa. Supreme Ct. No. 53788
Attorney for Plaintiffs-Condemnees
cc: PennDOT
RSR, Realtors
Q i7
CSY ?
4s?Xxl
NO. 00-2824
EMINENT DOMAIN PROCEEDING
IN REM
ORDER
AND NOW, this ay of , 2005, upon consideration of
x
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: Condemnation by the Civil Action - LAWR 0 4
COMMONWEALTH OF
PENNSYLVANIA, Department of
Transportation, of the Right-of-Way
for State Route 0015, Section A12, a
Limited Access Highway in the
Township of Upper Allen
CARL E. DALLMEYER and
KELLY J.DALLMEYER
Plaintiff
vs.
COMMONWEALTH OF
PENNSYLVANIA, PennDOT
Defendant
the petition of Carl E. Dallmeyer and Kelly J. Dallmeyer, the Court appoints:
A bu 2p, J3-
Ece-A 07 `
2 U
as a board of viewers to assess damages in the condemnation and further orders that the
1
2005
board of viewers perform its duties in accordance with the law and Acts of Assembly and
grants leave to the board of viewers to issue an interlocutory report or interlocutory
reports covering such properties or claims as the board of viewers determines
appropriate.
By the Court:
J.
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L. C. Heim
KATHERMAN, HEIM & PERRY
Attorney I.D. No. 23155
345 East Market Street
York, PA 17403
(717) 854-5124
Attorneys for Petitioner
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: Condemnation by the
COMMONWEALTH OF
PENNSYLVANIA, Department of
Transportation, of the Right-of-Way
for State Route 0015, Section A12, a
Limited Access Highway in the
Township of Upper Allen
CARL E. DALLMEYER and
KELLY J. DALLMEYER
Plaintiff
vs.
Civil Action - LAW
NO. 00-2824
EMINENT DOMAIN PROCEEDING
IN REM
COMMONWEALTH OF
PENNSYLVANIA, PennDOT
Defendant
PETITION FOR THE APPOINTMENT OF BOARD OF
VIEWERS PURSUANT TO 26 P.S. § 1-502(a)
The petition of Carl E. Dallmeyer and Kelly J. Dallmeyer ("condemnees")
by their undersigned counsel, represents:
1. On May 5, 2000, condemnees were the owner in fee simple of property
located at in Upper Allen Township, Cumberland County, Pennsylvania.
2. On May 5, 2000, a declaration of taking was filed of record by the
Commonwealth of Pennsylvania, Department of Transportation ('condemnor"),
including the property herein. A copy of the declaration of taking is attached as
Exhibit "A." No preliminary objections to the declaration of taking have been
filed which remain undisposed.
3. The subject property is more fully described in Deed Book 163, Page
659, and is identified as Parcel No. 37 in the declaration of taking filed in this
matter as follows.
4. The names and addresses of all other condemnees and mortgagees known
to condemnee to have an interest in the subject property are as follows:
a. M& T Bank, 21 East Market Street, York, Pennsylvania, having a
first mortgage against the property.
5. By virtue of the declaration of taking condemnor condemned the property
taking a fee simple or absolute title in a portion of the property.
6. Condemnees and condemnor have been unable to agree upon the just
compensation for the property.
WHEREFORE, condemnee requests that this Court appoint three viewers to
assess the damages to which condemnee is entitled by reason of the condemnation.
KATHERMAN, HEIM
& PERRY
by: 401,0?
C. Heim
Attorney for Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF RIGHT OF WAY FOR STATE
ROUTE 0015, SECTIONA12,
A LIMITED ACCESS HIGIDWAY IN THE TOWNSHIP OF UPPER
ALLEN
DECLARATION OF TAKING
Stuart A. Liner
Assistant Counsel
ID No. 15290
Commonwealth of Pennsylvania
Department of Transportation
Office of Chief Counsel
P.O. Box 8212
Harrisburg, PA 17105-8212
= K 7 YM
P
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION, OF THE
RIGHT-OF-WAY FOR STATE
ROUTE 0015, SECTION A12, A'
LIMITED ACCESS HIGHWAY IN
THE TOWNSHIP OF UPPER ALLEN
NO. 00-a gj?V etid
EMINENT DOMAIN
IN REM
DECLARATION OF TAKING
TO THE HONORABLE, THE JUDGES OF-THE. SAID COURT:
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This Declaration of Taking, based on the provisions of Article IV, Section 402, of
the Eminent Domain Code, Act of June 22, 1964, P. L. 84, 25 P. S. 1-402, as amended,
respectfully represents that:
1. The Condemnor is the Commonwealth of Pennsylvania, Department of
Transportation, acting through the Secretary of Transportation.
2. The address of the Condemnor is:
Commonwealth of Pennsylvania
Department of Transportation
Office of Chief Counsel
P.O. Box 8212 -
Harrisburg, PA 17105-8212
3. The Department of Transportation is authorized by the provisions of
Section 2003(e) of the Administrative Code of 1929, P. L. 177, 71 P. S. 513(e), as
amended, to acquire by gift, purchase, condemnation or otherwise, land in fee simple or
such other estate or interest as it shall determine, in the name of the Commonwealth for
all transportation purposes.
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4. The within condemnation has been authorized by a plan signed by the
1
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7
Secretary of Transportation on February 18, 2000, entitled "Drawings Establishing and
Re-establishing a Limited Access Highway Authorizing Acquisition of Right-of-Way for
State Route 0015, Section A12 R/W in Cumberland County, and State Route 2004, " a
copy of which plan was filed in the County Recorder's Office in Cabinet 3, Drawer 1 at
Page 130 on March 10, 2000.
transportation purposes.
5. The purpose of the within condemnation is to acquire property for
6. A Schedule of Property Condemned identifying and specifying the
location of the property hereby condemned is attached hereto and made a part hereof.
7. Plans showing the property hereby condemned may be inspected in the
Recorder's Office of the aforesaid County at the places indicated on the attached
Schedule of Property Condemned or, if not shown thereon, on the day of the filing of this
document being lodged for record or filed in said Recorder's Offices, where they may be
inspected.
8. The nature of the title hereby condemned is fee simple and a temporary
constuction easement.
9. In the event there are recoverable minerals (including gas and oil) within
the areas, if any, hereby condemned in fee simple, the mineral rights (including rights to
gas and oil) in those areas are hereby excepted and reserved from this condemnation,
provided however, that the right of support of the areas condemned is included within the
scope of this condemnation, and no access from the surface of such areas for removal
purposes will be allowed without permission from the Commonwealth.
COMMONWEALTH OF PENNSYLVANIA
•RW437(10/99) DEPARTMENT bF TRANSPORTATBON
SCHEDULE OF PROPERTY CONDEMNED
(Declaration of taking)
REMIS Pro. No. 080039 TYPE OF DESCRIPTION
Count Cumberland D- Deed Description
Fed. Pro . No. Q05-0131-1 15 P- Plan lodged for recording with Notice
Municipality 1 4
er Allen Townshi of Condemnation
-
Route-Sec. 015-A 12 - R- Plan now recorded in Recorder's. Office
Page 1
4e N
I?R-00 I
Parcel
No.
Claim
Number
Name, Mailing Address, Property
Interest of Condemnees, and
Location of Condemned Property Attached
Exhibit
Number
if an
'Type of
Descri tion
Plan (if any)
Recorded in
37 21000330000 Carl E. Dallmeyer, A Married Man and R Cabinet 3, Drawer I
Kelly J. Dallmeyer, A Single Woman, as Page 130
Joint Tenants with the right of survivorship Sheets #57, 26, 28 & 31
4775 N. Sherman Street Ext.
Mt. Wolf, PA 17347
Location of Property
Deed Book 163, Page 659
40 I
2_1000430000 ! I
William F. Rothman. Charles F. Sehuhe t
R {
. Cabinet;. Drawer I
and Samuel L. Reed, Anna Bianco, Page 130
Incorporated, William F. Rothman, I Sheets #21, 28, & 31
President
7DB/A Rothman, Schubert and Reed
Realtors
308 East Penn Drive
Enola. PA 17025 I
1
Location of Property
Deed Book Q-33, Page 1038
46 21000460000 Country Square Partnership, A R Cabinet 3, Drawer 1
Pennsylvania General Partnership Page 130
Ashcombe Products Company, General Sheets # 22 & 31
Partner
John S. Thornton, CEO
19 North Baltimore Street
Dillsburg, PA 17019
Location of Property
Deed Book 204; Page 1 146
57 21000490000 Alice R. Mountz, Single R Cabinet 3, Drawer 1
899 Emily Drive Page 130
Mechanicsburg, PA 17055 Sheets # 22 & 30
Location of Property
Deed Book 134, Page 259
.sue
I hereby verify that the statements in this PETITION are true and correct to the
best of my knowledge information and belief. I understand that false statements
herein are made subject to the penalties of 18 PA.C.S. Sec. 4904, relating to unsworn
falsification to authorities.
DATE: March 2, 2005 ?<
CARL E. DALLMEYE
D? w
ro
1
IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
CIVIL ACTION -- LAW
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF THE RIGHT-OF-WAY FOR STATE
ROUTE 0015, SECTION A12, A LIMITED
ACCESS HIGHWAY IN THE TOWNSHIP OF
UPPER ALLEN
CARL E. DALLMEYER and
KELLY J. DALLMEYER
No. 00-2824
Plaintiffs
V.
COMMONWEALTH OF PENNSYLVANIA, EMINENT DOMAIN
DEPARTMENT OF TRANSPORTATION, PROCEEDINGS -- IN REM
Defendant
CERTIFICATE OF SERVICE
I certify that I am serving the attached Praecipe for Entry of Appearance in the manner
and upon the persons as set forth below, which service satisfies the requirements of Pa.R.C.P.
440.
BY FIRST CLASS MAIL:
Larry C. Heim, Esquire
Katherman Heim & Perry PC
345 East Market Street
York, PA 17403-5614
Dated: September ? L2006
Respectfully submitted,
OFFICE OF JCF COUNSEL
ByDonald J. Assistant Counsel
Attorney for the Defendant
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF RIGHT OF WAY FOR S.R. 0015,
SECTION A12, A LIMITED ACCESS
HIGHWAY IN THE TOWNSHIP OF
UPPER ALLEN
CARL E. DALLEMYER and
KELLY J. DALLMEYER
Plaintiffs
V.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Defendant
PRAECIPE
TO THE PROTHONOTARY:
CIVIL ACTION -- LAW
No. 00-2824 CIVIL TERM
EMINENT DOMAIN
PROCEEDINGS
Kindly enter my appearance on behalf of the condemnor, Commonwealth of
Pennsylvania, Department of Transportation, the defendant in the above-captioned matter.
OF CHIEF
By:
Amanda G. Phily, Esquire
Attorney for the Defendant
w
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF RIGHT OF WAY FOR S.R. 00151
SECTION A12, A LIMITED ACCESS
HIGHWAY IN THE TOWNSHIP OF
UPPER ALLEN
CARL E. DALLMEYER and
KELLY J. DALLMEYER,
Plaintiffs
V.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Defendant
CIVIL ACTION -- LAW
No. 00-2824 CIVIL TERM
EMINENT DOMAIN
PROCEEDINGS
CERTIFICATE OF SERVICE
I certify that I am serving the attached Praecipe for Entry of Appearance in the
manner and upon the person as set forth below, which service satisfies the
requirements of Pa.R.C.P.
BY FIRST CLASS MAIL:
Larry C. Heim, Esquire
KATHERMAN HEIM & PERRY
345 East Market Street
York, PA 17403
Ily
By: ?f?cir It/ll/` r
manda G. Phily
Assistant Counsel
Attorney for the Defendant
Dated:April?, 2005
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COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
GOVERNOR'S OFFICE OF GENERAL COUNSEL
Donald A Smith, Assistant Counsel
Right of Way Section
Supreme CourtLD. #50483
P. O. Box 8212
HARRISBURG, PENNSYLVANIA 17105-8212
(717) 787-3128
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
CIVIL ACTION -- LAW
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF THE RIGHT-OF-WAY FOR STATE
ROUTE 0015, SECTION A12, A LIMITED
ACCESS HIGHWAY IN THE TOWNSHIP OF
UPPER ALLEN
CARL E. DALLMEYER and
KELLY J. DALLMEYER,
No. 00-2824
Plaintiffs
V.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Defendant
EMINENT DOMAIN
PROCEEDINGS -- IN REM
PRAECIPE
TO THE PROTHONOTARY:
Kindly enter my appearance on behalf of the condemnor, Commonwealth of Pennsylvania,
Department of Transportation, the defendant in the above-captioned matter.
OFFICE OF CHI UNSEL
By:
Donald J. Smith
Attorney for the Defendant
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
OFFICE OF CHIEF COUNSEL
REAL PROPERTY DIVISION
POST OFFICE BOX B212
HARRISBURG, PA 17105-8212
TELEPHONE: (717) 787.3126 GovERNOR's Ovnu OF
FACSIMILE: (717) 772-2741 GENERAL COUNSEL
October 13, 2006
L.C.Heim, Esquire
KATHERMAN, HEIM & PERRY
345 East Market Street
York, PA 11703-5614
Re: Carl E. & Kelly J. Dallmeyer v. Commonwealth
of Pennsylvania, Department of Transportation
Docket No. 00-2824 (Cumberland County)
Dear Attorney Heim:
Reference is made to your correspondence of September 28, 2006 inquiring
when the Commonwealth will be ready to schedule the above matter for hearing.
The Commonwealth's appraisal is being updated to the date of taking and is
anticipated to be completed by November 30, 2006. Since I will be attached for trial in
York County the weeks of December 11 and December 18, 1 would request that the site
view and hearing in this matter be scheduled no sooner than January 2007.
Thank you for your consideration of this correspondence.
Very truly rs,
Donald Assistant Counsel
cc: David B. Reynolds, R/W Administrator, Engineering District 8-0
William J. Cressler, Assistant Chief Counsel, Real Property Division
Christopher J. Clements, Assistant Counsel in Charge, Right of Way Section
L.C. HEIM
J. ROBERT KATHERMAN
RONALD PERRY
KRISTINAA. BANGE
KATHERMAN, HEIM & PERRY
ATTORNEYS AT LAW
345 EAST MARKET STREET
YORK, PENNSYLVANIA 17403
(717) 854-5124
FAX 843-2590
FAX 848-5898 (LCH)
October 24, 2006
William Duncan, Esquire
One Irvine Row
Carlisle, PA 17013
RE: Commonwealth of Pennsylvania
Department of Transportation
Carl E. & Kelly J.. Dallmeyer
No. 00-2824 (Cumberland County)
Dear Mr. Duncan:
PARALEGALS:
ROSE M. MORRIS
LINDA L. SHAFFER
LORI A. GRAHAM
Based upon the enclosed letter from the Commonwealth's counsel, we ask that this matter
now be scheduled for a hearing.
Yours truly,
KATHERMAN. HEIM & PERRY
C. Heim
LCH/rmm
enclosure
cc: Donald J. Smith, Esquire
Carl Dallmeyer
"We Mean Business"S.
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
OFFICE OF CHIEF COUNSEL
REAL PROPERTY DIVISION
POST OFFICE BOX 8212
HARRISBURG, PA 17105-8212 r
TELEPHONE: (717) 787-3128 GOVERNOR'S OFFICE OF
FACSIMILE: (717) 772-2741 GENERAL COUNSEL
September 12, 2006
William A. Duncan, Esquire
Chairperson, Board of View
Duncan Hartman & Douglas PC
One Irvine Row
Carlisle, PA 17013-3019
Re: Carl E. & Kelly J. Dallmeyer v.
Commonwealth of Pennsylvania,
Department of Transportation
No. 00-2824 (Cumberland County)
Dear Attorney Duncan:
Please be advised that the undersigned will be representing the Commonwealth of
Pennsylvania in all matters related to the above-captioned claim. Kindly direct notices and
correspondence directly to me at the above address, with a copy thereof to PennDot RM
Administrator, Engineering District 8-0, 2140 Herr Street, Harrisburg, PA 17103-1699.
Enclosed please find a copy of my praecipe for entry of appearance which I recently
filed with the Prothonotary of Cumberland County.
Thank you for your consideration and attention to this matter.
Very truly yours,
OFFICE OF CHIEF COUNSEL
BY:
Donald J. S ' h
Assistant Counsel
Right of Way Section
cc: Larry C. Heim, Esquire
David B. Reynolds, R/W Administrator, District 8-0
William J. Cressler, Assistant Chief Counsel
Christopher J. Clements, Assistant Counsel-in-Charge
COMMONWEALTH KEYSTONE BUILDING • 9TH FLOOR - 400 NORTH STREET • HARRISBURG, PA 1 7 1 20-0096
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
GOVERNOR'S OFFICE OF GENERAL COUNSEL
Donald J. Smith, Assistant Counsel
Right of Way Section
Supreme Court I.D. #50483
P. O. Box 8212
HARRISBURG, PENNSYLVANIA 17105-8212
(717) 787-3128
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF THE RIGHT-OF-WAY FOR STATE
ROUTE 0015, SECTION A12, A LIMITED
ACCESS HIGHWAY IN THE TOWNSHIP OF
UPPER ALLEN
CIVIL ACTION -- LAW
CARL E. DALLMEYER and
KELLY J. DALLMEYER,
No. 00-2824
Plaintiffs
V.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Defendant
EMINENT DOMAIN
PROCEEDINGS -- IN REM
PRAECIPE
TO THE PROTHONOTARY:
Kindly enter my appearance on behalf of the condemnor, Commonwealth of Pennsylvania,
Department of Transportation, the defendant in the above-captioned matter.
OFFICE OF CHI UNSEL
By:
Donald J. Smith
Attorney for the Defendant
IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
CIVIL ACTION -- LAW
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF THE RIGHT-OF-WAY FOR STATE
ROUTE 0015, SECTION A12, A LIMITED
ACCESS HIGHWAY IN THE TOWNSHIP OF
UPPER ALLEN
CARL E. DALLMEYER and
KELLY J.DALLMEYER
No. 00-2824
Plaintiffs
V.
COMMONWEALTH OF PENNSYLVANIA, EMINENT DOMAIN
DEPARTMENT OF TRANSPORTATION, PROCEEDINGS -- IN REM
Defendant
CERTIFICATE OF SERVICE
I certify that I am serving the attached Praecipe for Entry of Appearance in the manner
and upon the persons as set forth below, which service satisfies the requirements of Pa.R.C.P.
440.
BY FIRST CLASS MAIL:
Larry C. Heim, Esquire
Katherman Heim & Perry PC
345 East Market Street
York, PA 17403-5614
Dated: September 2006
Respectfully submitted,
OFFICE OF C F COUNSEL
By:
Donald J. &6' h
Assistant Counsel
Attorney for the Defendant
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION, OF THE
RIGHT-OF-WAY FOR STATE
ROUTE 0015, SECTION A12, A
LIMITED ACCESS HIGHWAY IN
THE TOWNSHIP OF UPPER ALLEN
NO. a) >? qa q el6k j
EMINENT DOMAIN PROCEEDING
IN REM
DECLARATION OF TAKING
TO THE HONORABLE, THE JUDGES OF THE SAID COURT:
This Declaration of Taking, based on the provisions of Article IV, Section 402, of
the Eminent Domain Code, Act of June 22, 1964, P. L. 84, 26 P. S. 1-402, as amended,
respectfully represents that:
1. The Condemnor is the Commonwealth of Pennsylvania, Department of
Transportation, acting through the Secretary of Transportation.
2. The address of the Condemnor is:
Commonwealth of Pennsylvania
Department of Transportation
Office of Chief Counsel
P.O. Box 8212
Harrisburg, PA 17105-8212
3. The Department of Transportation is authorized by the provisions of
Section 2003(e) of the Administrative Code of 1929, P. L. 177, 71 P. S. 513(e), as
amended, to acquire by gift, purchase, condemnation or otherwise, land in fee simple or
such other estate or interest as it shall determine, in the name of the Commonwealth for
all transportation purposes.
4. The within condemnation has been authorized by a plan signed by the
Secretary of Transportation on February 18, 2000, entitled "Drawings Establishing and
Re-establishing a Limited Access Highway Authorizing Acquisition of Right-of-Way for
State Route 0015, Section A12 R/W in Cumberland County, and State Route 2004, " a
copy of which plan was filed in the County Recorder's Office in Cabinet 3, Drawer 1 at
Page 130 on March 10, 2000.
5. The purpose of the within condemnation is to acquire property for
transportation purposes.
6. A Schedule of Property Condemned identifying and specifying the
location of the property hereby condemned is attached hereto and made a part hereof.
7. Plans showing the property hereby condemned may be inspected in the
Recorder's Office of the aforesaid County at the places indicated on the attached
Schedule of Property Condemned or, if not shown thereon, on the day of the filing of this
document being lodged for record or filed in said Recorder's Offices, where they may be
inspected.
8. The nature of the title hereby condemned is fee simple and a temporary
constuction easement.
9. In the event there are recoverable minerals (including gas and oil) within
the areas, if any, hereby condemned in fee simple, the mineral rights (including rights to
gas and oil) in those areas are hereby excepted and reserved from this condemnation,
provided however, that the right of support of the areas condemned is included within the
scope of this condemnation, and no access from the surface of such areas for removal
purposes will be allowed without permission from the Commonwealth.
10. The payment of just compensation in this matter is secured by the
Commonwealth's power of taxation.
11. I, Gary C. Fawver, P.E., Chief, Right of Way and Utilities Division, of the
Department of Transportation, do hereby depose, swear and affirm that I am authorized
by and do hereby execute this Declaration of Taking on behalf of the Commonwealth of
Pennsylvania, Department of Transportation, and that the averments contained and set
forth herein are true and correct to the best of my knowledge, information and belief, and
are made subject to penalties provided in N Pa. C. S. §4904, relating to false swearing to
authorities.
WHEREFORE, fee simple title and a temporary constuction easement are hereby
condemned from the properties identified on the attached Schedule of Property
Condemned, as indicated on the plans referenced in paragraph 7 above.
_..., .Y. _ w..
Chief, Right of ay and Utilities Division
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF RIGHT OF WAY FOR STATE
ROUTE 0015, SECTION A12,
A LIMITED ACCESS HIGHWAY IN THE TOWNSHIP OF UPPER
ALLEN
DECLARATION OF TAKING
Stuart A. Liner
Assistant Counsel
ID No. 15290
Commonwealth of Pennsylvania
Department of Transportation
Office of Chief Counsel
P.O. Box 8212
Harrisburg, PA 17105-8212
Page 1
COMMONWEALTH OF PENNSYLVANIA
RW4371 I0199) DEPARTMENT OF TRANSPORTATION
SCHEDULE OF PROPERTY CONDEMNED
(Declaration of Taking) A
'
REMIS Pro
. No. 080039 TYPE OF DESCRIPTION
Count Cumberland D- Deed Description I
Fed. Pro'. No. Q05-0131-115 P- Plan lodged for recording with Notice
Munici alit Upper Allen Townshi of Condemnation
Route-Sec. 0015-A 12 R- Plan now recorded in Recorder's Office
Parcel
No.
Claim
Number
Name, Mailing Address, Property
Interest of Condemnees, and
Location of Condemned Property Attached
Exhibit
Number
if an
Type of
Description
Plan (if any)
Recorded in
37 21000330000 Carl E. Dallmeyer, A Married Man and R Cabinet 3, Drawer 1
Kelly J. Dallmeyer, A Single Woman, as Page 130
Joint Tenants with the right of survivorship Sheets #57, 26, 28 & 31
4775 N. Sherman Street Ext.
Mt. Wolf, PA 17347
Location of Property
Deed Book 163, Page 659
40 21000430000 William F. Rothman, Charles F. Schubert R Cabinet 3, Drawer I
and Samuel L. Reed, Anna Bianco, Page 130
Incorporated, William F. Rothman, Sheets 421, 28, & 31
President
T/D/B/A Rothman, Schubert and Reed
Realtors
308 East Penn Drive
Enola, PA 17025
Location of Property
Deed Book Q-33, Page 1038
46 21000460000 Country Square Partnership, A R Cabinet 3, Drawer I
Pennsylvania General Partnership Page 130
Ashcombe Products Company, General Sheets # 22 & 31
Partner
John S. Thornton, CEO
19 North Baltimore Street
Dillsburg, PA 17019
Location of Property
Deed Book 204, Page 1146
57 21000490000 Alice R. Mountz, Single R Cabinet 3, Drawer 1
899 Emily Drive Page 130
Mechanicsburg, PA 17055 Sheets # 22 & 30
Location of Property
Deed Book 134, Page 259
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION, OF THE RIGHT-
OF-WAY FOR STATE ROUTE 0015,
SECTION A12, A LIMITED ACCESS
HIGHWAY IN THE TOWNSHIP OF
UPPER ALLEN
NO.
EMINENT DOMAIN PROCEEDING
IN REM
PRAECIPE TO ENTER APPEARANCE
TO THE PROTHONOTARY OF SAID COURT:
Please enter the appearance of Stuart A. Liner, Assistant Counsel, Office of Chief
Counsel, Department of Transportation, P.O. Box 8212, Harrisburg, PA 17105-8212, as attorney
for the Commonwealth of Pennsylvania, Department of Transportation, Condemnor in the
above-captioned proceedings.
9?" wit _ ( nl?? ?-
Stuart A. Liner
Assistant Counsel
¢? .
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION, OF THE
RIGHT-OF-WAY FOR STATE
ROUTE 0015, SECTION A12
IN THE TOWNSHIP OF UPPER ALLEN
NO. 00-2824 CIVIL TERM,
: EMINENT DOMAIN PROCEEDING
: IN REM
MEMORANDUM TO PROTHONOTARY
You are hereby informed that the notice of the condemnation effected by the Declaration of
Taking filed to the above term and number on May 5, 2000, was recorded in the office of the Recorder
of Deeds of the above county in Book 643, Page(s) 876.
The condemnation book and page number, file number, or microfilm number of any property
plat filed or microfilmed separately from the said Notice of Condemnation is shown on the list of
property condemned which is attached hereto.
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
District Right-of ay Administrator
Engineering District 8-0
COMMONWEALTH OF PENNSYLVANIA
RW 4)7 (10149) DEPARTMENT OF TRANSPORTATION
SCHEDULE OF PROPERTY CONDEMNED
(Declaration of Taking)
REMIS Pro'. No. 080039 TYPE OF DESCRIPTION
Count Cumberland D- Deed Description
Fed. Pro'. No. 005-6131-115 P- Plan lodged for recording with Notice
Municipality Upper Allen Townshl
0 of Condemnation
Route-Sec. 0015•A12 - Rr PI now recorded Recorder's i .
Page I
Parcel
No.
Claim
Number
Name, Mailing Address, Property
Interest of Coudemnees, and
Location of Condemned Prog!rty Attached
Exhibit
Number
an
Type of
Description
Plan (if any)
Recorded is
37 21000330000 Carl E. Dallmeyer, A Married Man and R Cabinet 3, Drawer I
Kelly J. Dallmeyer, A Single Woman, as Page 130
Joint Tenants with the right of survivotship Sheets #57, 26.28 & 31
4775 N. Sherman Street Ext.
Mt. Wolf, PA 17347
Location of Property
Deed Book 163. Page 659
40 31000430000 William F. Rothman. Charles F. Schubert R Cabinet 3. Drawer I
and Samuel L. Reed, Anna Bianca, Page 130
Incorporated, William F. Rothman, Sheets #21, 28. & 31
President
T/D/B/A Rothman, Schubert and Reed
Realtors
309 East Penn Drive
Enals. PA 17025
Location of Property
Deed Book Q-33, Page 1038
46 21000460000 Country Square Partnership, A R Cabinet 3. Drawer I
Pennsylvania General Partnership Page 130
Asluombe Products Company. General Sheets # !2 & 31
Partner
John S. Thomton. CEO
19 North Baltimore Street
Dillsburg, PA 17019
Location of Property
Deed Book 204, Page 1146
57 21000490000 Alice R. Moutnz, Single R Cabinet 3. Drawer I
999 Emily Drive Page 130
Mechanicsburg. PA 17055 Sheets # 22 & 30
Location of Property
Deed Book 134, Page 259
RW432 (03/99)
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION, OF THE
RIGHT-OF-WAY FOR STATE
ROUTE 0015, SECTION Al2
IN THE TOWNSHIP OF UPPER ALLEN
: NO. 00-2824 CIVIL TERM,
EMINENT DOMAIN PROCEEDING
IN REM
PROOF OF SERVICE
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
ss
David B. Reynolds, being duly sworn according to law, deposes and says that he is District Right-of-Way
Administrator of Engineering District 8-0, Department of Transportation, Commonwealth of Pennsylvania, and
that on or before May 16, 2000, notice of the filing of the declaration of taking in the above matter was served
on the condemnees affected thereby in compliance with Article IV, Section 405, of the Eminent Domain Code,
Act June 22, 1964, P.L. 84, as amended. A schedule of the condemnees so notified is attached hereto and made
part hereof.
Swom to and subscribed before me 612210a
Notary Public
tx AA ! ZL i
District Rig t of-Way Administrator
My Commission Expires: NOWp1ALSFN
LYNN A. CAHHOLL
My wab l3oms Nolm JIsmi
Cr
Page 1
RW437 (10199)
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
SCHEDULE OF PROPERTY CONDEMNED
(Declaration of Taking)
REMIS Pro'. No. 080039
Count Cumberland
Fed. Pro'. No. Q05-0131-115
Municipality Upper Allen Township
Route-Sec. 0015-A 12
TYPE OF DESCRIPTION
D- Deed Description
P- Plan lodged for recording with Notice
of Condemnation
R- Plan now recorded in Recorder's Office
s
Parcel
No.
Claim
Number
Name, Mailing Address, Property
Interest of Condemnees, and
Location of Condemned Property Attached
Exhibit
Number
if an
Type of
Description
Plan (if any)
Recorded in
37 21000330000 Carl E. Dallmeyer, A Married Man and R Cabinet 3, Drawer I
Kelly J. Dallmeyer, A Single Woman, as Page 130
Joint Tenants with the right of survivorship Sheets #57, 26, 28 & 31
4775 N. Sherman Street Ext.
Mt. Wolf, PA 17347
Location of Property
Deed Book 163, Page 659
40 210004 30000 William F. Rothman. Charles F. Schubert R Cabinet 3, Drawer I
and Samuel L. Reed, Anna Bianco, Page 130
Incorporated, William F. Rothman, Sheets #21, 28, & 31
President
T/D/B/A Rothman, Schubert and Reed
Realtors
308 East Penn Drive
Enola. PA 17025
Location of Property
Deed Book 433, Page 1038
46 21000460000 Country Square Partnership, A R Cabinet 3, Drawer I
Pennsylvania General Partnership Page 130
Ashcombe Products Company, General Sheets #'_2 & 31
Partner
John S. Thornton, CEO
19 North Baltimore Street
Dillsburg, PA 17019
Location of Property
Deed Book 204, Page 1 146
57 21000490000 Alice R. Mountz, Single R Cabinet 3, Drawer 1
899 Emily Drive Page 130
Mechanicsburg, PA 17055 Sheets # 22 & 30
Location of Property
Deed Book 134, Page 259
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION, OF THE
RIGHT-OF-WAY FOR STATE
ROUTE 0015, SECTION A12, A
LIMITED ACCESS HIGHWAY
IN THE TOWNSHIP OF UPPER
ALLEN
NO. 00-2824 CIVIL TERM
EMINENT DOMAIN PROCEEDING
IN REM
PRELIMINARY OBJECTIONS OF
ROTHMAN, SCHUBERT AND REED, REALTORS
TO THE HONORABLE, JUDGES OF SAID COURT:
AND NOW COMES, the Condemnee, William F. Rothman, Charles F. Schubert, Samuel L.
Reed, and Anna Bianco, T/D/B/A Rothman, Schubert and Reed, Realtors, by and through its attorneys,
Coyne & Coyne, P.C., and files the within Preliminary Objections to the Declaration of Taking pursuant
to Section 406 of the Eminent Domain Act of 1964, as amended, and respectfully represents:
1. Condemnor is the Commonwealth of Pennsylvania, Department of Transportation
(herein after "PennDOT").
2. Condemnee is a partnership consisting of William F. Rothman, Charles F. Schubert and
Samuel L. Reed and Anna Bianco, t/d/b/a Rothman, Schubert and Reed, Realtors (hereinafter "RSR"), a
partnership with its business offices located at 308 East Penn Drive, Enola, Pennsylvania and is the
record and fee simple owner of the premises located in Upper Allen Township, Cumberland County,
Pennsylvania.
3. On December 1, 1487, RSR purchased the property at issue which is located in the
Commercial Convenience zoning district of Lower Allen Township.
4. On May 12, 2000, RSR was served a notice of Declaration of Taking concerning their
real estate generally referred to as 717 Lisburn Road, Mechanicsburg, Pennsylvania.
5. The Notice of Declaration provides for PennDOT to acquire a large portion of RSR's
property for use as a right-of-way and temporary construction easement for the development of a
"diamond interchange" between Lisburn Road and U.S. Route 15.
6. The proposed plan submitted by PennDOT completely landlocks RSR's property
allowing for no point of access to or exit from the property and as such results in a flawed design and a
defacto taking of the residual land without providing RSR with just compensation and therefore the plan
does not properly describe the property which is actually being acquired by PennDOT in this dejure and
defacto taking of RSR's property.
7. Since the formal filing of the declaration of taking, RSR has completed the application
for the pro tanto payment of estimated just compensation; however, to date no payment has been
forthcoming from PennDOT in accordance with the Eminent Domain Code.
8. RSR's property consists of a lot upon which there exists a single family home and a
detached garage which RSR has leased to tenants; however, prior to the Declaration of Taking being
filed, PennDOT, unbeknownst to RSR, approached RSR's tenant and directed them to vacate RSR's
property and made payment to the tenant's for their inconvenience.
2
9. RSR's tenants vacated the property at PennDOT's behest and therefore unilaterally
terminated RSR's lease without RSR's permission.
10. PennDOT has failed to compensate or offer to compensate RSR for the loss of rental
value for the property which has been vacant from March 1, 2000 and RSR has been unable to rent the
property since that time because of the notoriety of the pending construction project.
11. For the reasons set forth above, the said Declaration of Taking is void and of no effect
whatsoever and as a result thereof, title to said premises shall be deemed to vest in RSR to the same
extent as if no Declaration of Taking had been filed.
WHEREFORE, Rothman, Schubert and Reed, Realtors prays your Honorable Court to enter an
Order dismissing said Declaration of Taking, decreeing same to be void and of no effect whatsoever and
further decreeing that title to said premises shall vest in Rothman, Schubert and Reed, Realtors to the
same extent as if no Declaration of Taking had been filed.
Date: 1. -9-0)
Respectfully submitted:
COYNE & COYNE, P.C.
By:
Lisa Marie Coyn , Esquire
/ 3901 Market Street
Camp Hill, PA 17011-4227
(717) 737-0464
Pa. Supreme Cf. No. 53788
Attorney for Condemnee-RSR.
3
VERIFICATION
The facts set forth in the foregoing are true and correct to the best of the undersigned's
knowledge, information and belief and are verified subject to the penalties for unworn
falsification to authorities under 18 Pa. C.S.A. §4904.
iA les ?;h ti??fy ? lC S2
CERTIFICATE OF SERVICE
I, Lisa Marie Coyne, hereby certify that true copy of Condemnee's Preliminary Objections was
served this date upon the below-referenced individuals at the below listed address by way of First class
mail, postage prepaid:
Stuart A. Liner, Esquire
Assistant Counsel, Office of Chief Counsel
Department of Transportation
P.O. Box 8212
Harrisburg, PA 17105-8212
Dated: 6 y - UG
is arie Coyne, quire
. Supreme Ct. No. 53788
Attorney for Condemnee-- RSR
S.
1'V'
i ._
f. ,
.+' : -
.:+ ?a
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
OFFICE OF CHIEF COUNSEL
Christopher J. Clements, Asst Counsel in-Charge
Right of Way Section
Supreme Court LD. #44699
A O. Box 8212
HARRISBURG, PA 17105-8212
(717) 787-3128
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH, OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION
OF RIGHT OF WAY FOR S.R. 0015,
SECTION A12, A LIMITED ACCESS
HIGHWAY, IN THE TOWNSHIP
OF UPPER ALLEN
WILLIAM R. ROTHMAN, CHARLES F.
SCHUBERT, SAMUEL L. REED and ANNA
BIANCO, t/dib/a ROTHMAN, SCHUBERT &
REED,REALTORS,
Plaintiffs
V.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Defendant
TO THE PROTHONOTARY:
PRAECIPE
CIVIL ACTION -- LAW
No. 00-2824 CIVIL TERM
EMINENT DOMAIN
PROCEEDINGS -- IN REM
Kindly enter my appearance on behalf of the condemnor, Commonwealth of
Pennsylvania, Department of Transportation, the defendant in the above-captioned matter.
oBzc O SEL
, -0/17 Chhe . Clemen
Asst. Co l in-Charge
Attorney for the Defendant
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION
OF RIGHT OF WAY FOR S.R. 0015,
SECTION A12, A LIMITED ACCESS
HIGHWAY, IN THE TOWNSHIP
OF UPPER ALLEN
WILLIAM R. ROTHMAN, CHARLES F,
SCHUBERT, SAMUEL L. REED and ANNA
BIANCO, t/d/b/a ROTHMAN, SCHUBERT &
REED,REALTORS,
Plaintiffs
CIVIL ACTION -- LAW
No. 00-2824 CIVIL TERM
V.
COMMONWEALTH OF PENNSYLVANIA, EMINENT DOMAIN
DEPARTMENT OF TRANSPORTATION, PROCEEDINGS -- IN REM
Defendant
CERTIFICATE OF SERVICE
I certify that I am serving the foregoing document in the manner and upon the
person as set forth below, which service satisfies the requirements of Pa.R.C.P. 440:
BY FIRST CLASS MAIL:
Lisa Marie Coyne, Esq.
COYNE & COYNE, P.C.
3901 Market Street
Camp Hill, PA 17011-4227
OFFICE OF
Dated: June 13, 2000
Asst. Coun*el in-Charge
Attorney for the Defendant
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
OFFICE OF CHIEF COUNSEL
Christopher J. Clements, Asst Counsel in-Charge
Right of Way Section
Supreme Court LD. #44699
A O. Box 8212
HARRISBURG, PA 17105-8212
(717) 787-3128
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE CIVIL ACTION -- LAW
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION
OF RIGHT OF WAY FOR S.R. 0015,
SECTION A12, A LIMITED ACCESS
HIGHWAY, IN THE TOWNSHIP
OF UPPER ALLEN
WILLIAM R. ROTHMAN, CHARLES F. No. 00-2824 CIVIL TERM
SCHUBERT, SAMUEL L. REED and ANNA
BIANCO, t/d/b/a ROTHMAN, SCHUBERT &
REED,REALTORS,
Plaintiffs
V.
COMMONWEALTH OF PENNSYLVANIA, EMINENT DOMAIN
DEPARTMENT OF TRANSPORTATION, PROCEEDINGS -- IN REM
Defendant
CONDEMNOR'S PETITION FOR RULE TO SHOW CAUSE
WHY PRELIMINARY OBJECTIONS SHOULD NOT BE
DISMISSED; MOTION FOR EXPEDITED HEARING;
MOTION TO CONSOLIDATE WITH SIMILAR ACTION
AND NOW, to wit, this 13th day of June, 2000, the Commonwealth of Pennsylvania,
Department of Transportation, defendant and condemnor, by its attorney, Christopher J.
Clements, Assistant Counsel in-Charge, Right of Way Section, respectfully represents as follows:
Count I. Petition for Rule to Show Cause.
On May 5, 2000, the condemnor filed a Declaration of Taking in the above-
captioned matter, attached hereto and made a part hereof as Exhibit A.
2. On or about June 9, 2000, William R. Rothman, Charles F. Schubert, Samuel L.
Reed and Anna Bianco, t/d/b/a Rothman, Schubert & Reed, Realtors, plaintiffs and condemnees
in this matter, filed preliminary objections to the declaration of taking alleging, inter alia:
a. That the within highway project has left a residual, landlocked parcel
resulting in a de facto taking of the same and that, thus, the declaration of taking is invalid (see
para. 6);
b. That certain pre-condemnation activities related to the Uniform Relocation
Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. §4601 et seq.,
conducted by the condemnor in relation to a residential tenant of the condemnee invalidate the
declaration of taking (see paras. 8-10);
C. That the condemnor has failed to pay just compensation for the taking and
that, therefore, the declaration of taking is invalid (see para. 10); and
d. That the condemnor has yet to pay to the condemnee a pro tanto payment
(known in the Commonwealth as an offer of estimated just compensation) even though the
condemnee "has completed the application" for the same (see para. 7)
3. To the extent that the condemnees raise facts relevant to the condemnor's
highway design asserting that it is "flawed" to leave a landlocked remainder (para. 6), such
assertion is contrary to law since the Department is vested with the discretion not to acquire such
landlocked parcels. 71 P.S. §513(e)(2)(i). The condemnees' preliminary objections must be
dismissed as their sole remedy is to file a petition for a board of view alleging a de facto taking
pursuant to Section 502(e) of the Eminent Domain Code of 1964, as amended, 26 P.S. § 1-502(e).
It must be noted that the condemnees do not assert an "excessive" taking of too much land but,
instead, seem to assert that the condemnor should have effected a total taking of all of their land.
This is, as well, an improper basis for preliminary objections since it represents 1) a design
engineering issue properly within the administrative discretion of the condemnor; and 2) an issue
for which an adequate remedy for just compensation exists to the extent that the condemnees can
file a petition for a board of view under the Eminent Domain Code. See 26 P.S. § 1-502.
4. To the extent that the condemnees have set forth various challenges based upon
the issue of relocation assistance to a residential tenant (paras. 8-10), the scope of preliminary
objections under the Eminent Domain Code is limited, 26 P.S. § 1-406, and challenges to issues
relating to relocation assistance are collateral and do not go to the power and right to condemn
under the Eminent Domain Code, as a matter of law. Accordingly, these allegations are legally
irrelevant and preliminary objections based upon this issue must be dismissed. Furthermore, any
issue concerning alleged lost rental income constitutes a matter concerning just compensation
and is beyond the scope of preliminary objections under the Code.
3
5. To the extent that the condemnees challenge the adequacy of just compensation
(para. 10), the scope of preliminary objections under the Eminent Domain Code is limited, 26
P. S. § 1-406, and challenges to the adequacy of the just compensation offered by a condemnor are
not proper preliminary objections as a matter of law. Condemnees' constitutional rights to just
compensation are adequately protected by the right to petition for a board of view under the
Eminent Domain Code. See 26 P.S. §1-502.
6. Finally, as alleged in para. 7, the condemnees have applied for estimated just
compensation and the matter has been placed in-line for payment in the amount of $106,300.00.
See Exhibit B. Astoundingly, said application is actually legally inconsistent with the filing of
preliminary objections challenging the declaration of taking and seeking to divest the condemnor
of legal title! Quite obviously, the condemnees' application for payment pro tanto is evidence of
the condemnees' desire to relinquish possession of the condemned lands to the condemnor,
pursuant to Section 407 of the Eminent Domain Code, 26 P.S. §1-407. Such conduct is more
consistent with a petition for a board of view alleging a de facto condemnation then the filing of
preliminary objections to a declaration of taking and actually amounts to an admission by the
condemnees that their preliminary objections are without merit..
Count II. Motion for Expedited Hearing
Paragraphs 1 through 6, above, are incorporated by reference herein and made a
part hereof.
4
8. Section 406(e) of the Eminent Domain Code, 26 P.S. § 1-406(e), provides that the
court shall determine promptly all preliminary objections to a declaration of taking.
9. The condemnor is ready to move toward the construction of a major and much-
needed transportation safety improvement project at the intersection of Lisburn Road and S.R.
0015 by the end of June, 2000.
10. Time is of the essence, since highway construction projects in the Commonwealth
are impacted by seasonal conditions. The letting date is June 29, 2000; a highway project cannot
be let while preliminary objections are pending.
11. Preliminary objections delay possession of property needed for the project and,
consequently, potentially result in the loss if an entire construction season, leading to cost over-
runs and, more critically, unnecessarily depriving the public of a timely and much-needed
transportation safety improvement project.
12. Condemnees have little likelihood of success on the merits of the within
preliminary objections, as they are beyond the scope of proper preliminary objections under the
Code and their objections constitute, primarily, a disagreement as to the amount of just
compensation owed. The condemnees have an adequate remedy of a petition for a board of view
on this issue and, otherwise, will not be prejudiced in any way by a prompt rule to show cause
and expedited hearing.
13. The condemnor will provide all facts and data relevant to the highway design
impacting the condemnees' property promptly at the request of the condemnees and is prepared
to produce the same at a prompt hearing along with all necessary witnesses.
Count III. Motion to Consolidate with Similar Action
14. Paragraphs 1 through 13, above, are incorporated by reference herein and made a
part hereof.
15. Counsel for the condemnees herein, Lisa Marie Coyne, Esquire, is also counsel
for UNICO Corporation, a condemnee in a declaration of taking filed in Cumberland County on
May 8, 2000, at No. 00-2856. Counsel for condemnees has filed preliminary objections in
Cumberland County on behalf of UNICO Corporation raising the same or similar issues as the
preliminary objections filed to the within declaration of taking of condemnees' property.
16. The highway project is the same in both cases, both properties are located at the
same intersection scheduled to be reconstructed into a limited access interchange and the
condemnor's defenses to the preliminary objections are the same or similar in each case.
Testimony and evidence, if any, regarding the highway project from the condemnor would be
offered regarding both cases from the same witnesses and documents.
17. In the interests of justice and judicial economy, these cases can be consolidated.
The condemnees in these cases would not be prejudiced from a consolidated action.
WHEREFORE, for all of the foregoing reasons, the Commonwealth of Pennsylvania,
Department of Transportation, condemnor respectfully requests this Honorable Court to promptly
issue a rule to show cause upon the condemnee as to why the preliminary objections should not
be dismissed, to grant the Department's motion for an expedited hearing scheduling the same
promptly for review by the Court and to grant the Department's motion to consolidate this action
with the similar action in eminent domain currently pending at No. 00-2856.
in-Charge
Attorney for the Condemnor
7
Respectfully submitted,
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE CIVIL ACTION -- LAW
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION
OF RIGHT OF WAY FOR S.R. 0015,
SECTION A12, A LIMITED ACCESS
HIGHWAY, IN THE TOWNSHIP
OF UPPER ALLEN
WILLIAM R. ROTHMAN, CHARLES F. No. 00-2824 CIVIL TERM
SCHUBERT, SAMUEL L. REED and ANNA
BIANCO, t/d/b/a ROTHMAN, SCHUBERT &
REED, REALTORS,
Plaintiffs
V.
COMMONWEALTH OF PENNSYLVANIA, EMINENT DOMAIN
DEPARTMENT OF TRANSPORTATION, PROCEEDINGS -- IN REM
Defendant
CERTIFICATE OF SERVICE
I certify that I am serving the foregoing document in the manner and upon the
person as set forth below, which service satisfies the requirements of Pa.R.C.P. 440:
BY FIRST CLASS MAIL:
Lisa Marie Coyne, Esq.
COYNE & COYNE, P.C.
3901 Market Street
Camp Hill, PA 17011-4227
Attorney for the Defendant
Dated: June 13, 2000
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION, OF THE
RIGHT-OF-WAY FOR STATE
ROUTE 0015. SECTION A12, A
LIMITED ACCESS HIGHWAY IN
THE TOWNSHIP OF UPPER ALLEN
DECLARATION OF TAKING
NO. !10- o) 5aq
EMINENT DOMAIN PROCEEDING
IN REM
TO THE HONORABLE, THE JUDGES OF THE SAID COURT:
r?
?n
This Declaration of Taking, based on the provisions of Article IV, Section 402, of
the Eminent Domain Code, Act of June 22, 1964, P. L. 84, 26 P. S. 1-402, as amended,
respectfully represents that:
The Condemnor is the Commonwealth of Pennsylvania, Department of
Transportation, acting through the Secretary of Transportation.
2. The address of the Condemnor is:
Commonwealth of Pennsylvania
Department of Transportation
Office of Chief Counsel
P.O. Box 8212
Harrisburg, PA 17105-8212
3. The Department of Transportation is authorized by the provisions of
Section 2003(e) of the Administrative Code of 1929, P. L. 177, 71 P. S. 513(e), as
amended, to acquire by gift, purchase, condemnation or otherwise, land in fee simple or
such other estate or interest as it shall determine, in the name of the Commonwealth for
all transportation purposes.
•
EXHIBIT ------- ---
i
4. The within condemnation has been authorized by a plan signed by the
Secretary of Transportation on February 18, 2000, entitled "Drawings Establishing and
Re-establishing a Limited Access Highway Authorizing Acquisition of Right-of-Way for
State Route 0015, Section A12 R/W in Cumberland County, and State Route 2004, " a
copy of which plan was filed in the County Recorder's Office in Cabinet 3, Drawer 1 at
Page 130 on March 10, 2000.
5. The purpose of the within condemnation is to acquire property for
transportation purposes.
6. A Schedule of Property Condemned identifying and specifying the
location of the property hereby condemned is attached hereto and made a part hereof.
7. Plans showing the property hereby condemned may be inspected in the
Recorder's Office of the aforesaid County at the places indicated on the attached
Schedule of Property Condemned or, if not shown thereon, on the day of the filing of this
document being lodged for record or filed in said Recorder's Offices, where they may be
inspected.
8. The nature of the title hereby condemned is fee simple and a temporary
constuction easement.
9. In the event there are recoverable minerals (including gas and oil) within
the areas, if any, hereby condemned in fee simple, the mineral rights (including rights to
gas and oil) in those areas are hereby excepted and reserved from this condemnation,
provided however, that the right of support of the areas condemned is included within the
scope of this condemnation, and no access from the surface of such areas for removal
purposes will be allowed without permission from the Commonwealth.
10. The payment of just compensation in this matter is secured by the
Commonwealth's power of taxation.
11. I, Gary C. Fawver, P.E., Chief, Right of Way and Utilities Division, of the
Department of Transportation, do hereby depose, swear and affirm that I am authorized
by and do hereby execute this Declaration of Taking on behalf of the Commonwealth of
Pennsylvania, Department of Transportation, and that the averments contained and set
forth herein are true and correct to the best of my knowledge, information and belief, and
are made subject to penalties provided in 18 Pa. C. S. §4904, relating to false swearing to
authorities.
WHEREFORE, fee simple title and a temporary constuction easement are hereby
condemned from the properties identified on the attached Schedule of Property
Condemned, as indicated on the plans referenced in paragraph 7 above.
c-
Chief, Right of)Klay and Utilities Division
Page 1
COMMONWEALTH OF PENNSYLVANIA
R W 437 (10/99) DEPARTMENT OF TRANSPORTATION
SCHEDULE OF PROPERTY CONDEMNED / 0" N%N
(Declaration of Taking) a ;
REMIS Pro'. No. 080039 TYPE OF DESCRIPTION \`F
Count Cumberland D- Deed Description
Fed. Pro'. No. Q05-0131-115 P- Plan lodged for recording with Notice
Municipality Upper Allen Township of Condemnation
Route-Sec. 0015-A 12 R- Plan now recorded in Recorder's Office
Parcel
No.
Claim
Number
Name, Mailing Address, Property
Interest of Condemnees, and
Location of Condemned Pro a Attached
Exhibit
Number
if an
'Type of
Descri tion
Plan (if any)
Recorded in
37 21000330000 Carl E. Dallmeyer, A Married Man and R Cabinet 3, Drawer I
Kelly J. Dallmeyer, A Single Woman, as Page 130
Joint Tenants with the right of survivorship Sheets #57, 26, 28 & 31
4775 N. Sherman Street Ext.
Mt. Wolf, PA 17347
?
Location of Property I
Deed Book 163, Page 659
40 2100043,0000 William F. Rothman. Charles F. Schubert R Cabinet 3, Drawer I
and Samuel L. Reed, Anna Bianco, Page 130
Incorporated, William F. Rothman, Sheets 421, 28. & 31
President
I /D/B/A Rothman, Schubert and Reed
Realtors
308 East Penn Drive
Enola. PA 17025
Location of Property
Deed Book Q-33, Page 1038
46 21000460000 Country Square Partnership, A R Cabinet 3, Drawer I
Pennsylvania General Partnership Page 130
Ashcombe Products Company. General Sheets # 22 & 31
Partner
John S. Thornton, CEO
19 North Baltimore Street
Dillsburg, PA 17019
Location of Property
Deed Book 204, Page 1 146
57 21000490000 Alice R. Mountz, Single R Cabinet 3, Drawer 1
899 Emily Drive Page 130
Mechanicsburg, PA 17055 Sheets # 22 & 30
Location of Property
Deed Book 134, Page 259
RW448 (07/99)
....o.
REMt
Pro'. No. 08003
y
County
CUMBERLAND 9
Fed. Pro. No. 05-0131-115 y
Route-Sec. 0015-AI2 APPLICATION FOR
Claim No. 21000430000 PAYMENT OF ESTIMATED
Claimant ROTHMAN, SCHUBERT, & REED REALTORS JUST COMPENSATION
Property Address 717 Lisburn Road
Mt:chanicsbura Penns 17055
IN RE: CONDEMNATION BY THE COMMONWEALTH OF IN THE COURT OF COMMON PLEAS OF
PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, CUMBERLAND COUNTY, PENNSYLVANIA
OF RIGHT OF WAY FOR STATE ROUTE 0015, SECTION NO. 00-2824 Civil Term
Alt, A LIMITED ACCESS HIGHWAY, IN THE TOWNSHIP EMINENT DOMAIN PROCEEDINGS
OF UPPER ALLEN
Date of Application: 513 /oo
Application is hereby made for payment of One Hundred and Six Thousand, Three Hundred Dollars and 00/100
($106,300) Dollars, the amount estimated by the COMMONWEALTH to constitute just compensation for damages
which will accrue to the above property (or the interest of the APPLICANT(S) therein) as a result of the above
condemnation. In accordance with Section 407 of the Eminent Domain Code of 1964, the aforesaid payment will be
made and received without prejudice to the rights of either the COMMONWEALTH or the APPLICANT(S) to proceed
to a final determination of just compensation by filing a petition for the appointment of viewers within five years of the
date of this payment. The payment shall be considered only as payment pro-tanto of just compensation as finally
determined, it being understood that the COMMONWEALTH shall pay to the APPLICANT(S) the difference between
the aforesaid amount and any higher amount which may be finally determined.
2. The COMMONWEALTH does not require actual physical possession of the property until either the start of
construction or written notice that possession is required (whichever occurs earlier) and until such time, APPLICANT(S)
remain(s) in possession with the right to use the property in such manner as will not result in physical or other change
to the contour or nature of the property, further APPLICANT(S) shall not erect or install any improvements on the
property. A
INDIVIDUAL / rE?H
Witness \..,.
(SEAL)
Witness
i
QI
Witness rA' ? 2uc &SEAL)
Witness (SEAL)
CORPORATION, ASSOCIATION, CLUB, ETC.
I attest to the signature of the officer who has
executed this agreement and certify that execution
hereof has been duly authorized by the
of ROTHMAN, SCHUBERT, &
BO D OF DIRECTOR MAJORITY VOTE OF ASSOC.. ETC. CO JRATTON. OCIATION,
(SEAL)
?'?` EXHIBIT ??-?
COMMONWEALTH OF PENNSYLVANIA
RW943 (07,99) DEPARTMENT OF TRANSPORTATION
REMIS Proj. No. 080039
County Cumberland
Fed. Proj. No. Q05-0131-115
Route-Sec. 0015-A12
Parcel No. 40
Claim No. 21000430000
Claimant's F.I.D. 23-1995359
Claimant of man, Schubert &
Reed Realtors
Date: v
To: Chief Right-of-Way and Utilities Division
P.O. Box 3362 - Forum Place 7" Floor
Harrisburg, PA 17101-3362
RECEIVED
Dept. n-f 7*ar.srortation
3 ?Rl)
-iCN
Cost
Function
Description Part.
Code Serial
No.
Pay No.
Amount
1101 Payment of E.J.C. 1 08RO39 o e $80,550.00
1103 Tax Proration 1 08R039 Q $ 295.93
1111 Amt. Alloc'D for Severance 1 08RO39 D $ 25,000.00
1116 Temporary Easement 1 08R039 DD $ 750.00
$
$
_, - 'Total $ 106,595.93
Attachments: R/W-448, 313, 313T and 918
Agent's Name: Michael E. Foutz
Comments:
Telephone: 7-5035
l(
,. ?
PAYMENT TRANSMITTAL
From: Right-of-Way Administrator
All
RW313 (10/99)
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
REMIS Proj No 080039
County CUMBERLAND
Fed. Proj. No. 05-0131-115
Route-Sec. 0015-A12
Claim No. 21000430000
Claimant Rothman, Schubert, and
Reed Realtors
SETTLEMENT STATEMENT
Estimated Just Compensation
?M?
I of 2
PROJECTED DISTRIBUTION DATE
Date: S/ 3 / loo
ADDRESS OF CLAIMANT(S) LOCATION (ADDRESS) OF PROPERTY CLAIMANT'S ATTORNEY AND ADDRESS
308 EAST PENN DRIVE 717 LISBURN ROAD NONE
ENOLA, PENNA. 17025 MECHANICSBURG, PENNA. 17055
ATTN: William F. Rothman, CEO
Estimated Just Compensation
Commonwealth's Pro-Rata Share of Current Realty Taxes
Mortgage Pre-Payment Penalty
Mortgage Satisfaction Fee
Less Monies Previously Paid
Less Monies Credited for Owner Retained Items
Withheld Pending Building Removal by Owner
Mortgage(s):
Mortgagee:
Principal:
Interest (to date: )
Pre-Payment Penalty*:
Satisfaction Fee*:
Unpaid Current Taxes:
Claimant(s) Pro-Rata Share
Commonwealth's Pro-Rata Share*
Liens and/or Delinquent Taxes and Municipal Claims:
Judgment(s):
TOTAL 0.00
TOTAL CHARGES _ 0.00
Minus Total Charges
$106,300.00
Actual $295.93
$0.00
$106,595.93
$0.00
Balance Due Claimant(s) $106,595.93
R W 313 (10/99) 2 of 2
The distribution of funds as shown on the reverse hereof is approved and the "Balance Due Claimant(s)" is acknowledged to be
correct. I hereby acknowledge receipt of a copy of this settlement statement.
CORP., ASSOC., CLUB, ETC
I attest to the signature of the officer who has executed
this agreement and certify that execution thereof has
been duly authorized by
of ROTHMAN,SCHUBERT, & REED REALTORS
BOARD OF DIRECTORS, MAJORITY VOTE OF ASSOC., ETC CORPORATION, ASSOCIATION, CLUB, ETC
(SEAL)
I Hereby Certify That The Information On This Form Is True And Correct, According To The Records Of The Pennsylvania
Department Of Transportation.
L ?
Signature
Real Estate Specialist
Title
Date - S /3 1?l0 c,
Witness (SEAL)
RIW-313T 111194)
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
COUNTY
<<r /Jl2l jsJ
ST. PROD. NO.
FED_ PRGj. No os-v/S/ - //S-
PARCEL O.
CLAIM NO. Z OO'O ,30000
CLAIMANT 4'v-,H7w- S=r?e/i1? /Ifr?
A-4. rvy
PRORATION OF REAL ESTATE TAXES
(COMMONWEALTH'S SHARE)
d
i
S- _
DATE OF EXECUTION OF DEED OR DECLARATION OF TAKING S vO DATE OF POSSESSION
1. MUNICIPAL OR TOWNSHIP TAXES (CALENDAR YEAR - JANUARY 1 THRU DECEMBER 31)
DS XF XMS =X$
BS
2. COUNTY TAXES (CALENDAR YEAR - JANUARY 1 THRU DECEMBER 31)
D S X F X M S 2/B, 3r = X S `7?3• 7
BS
3. SCHOOL TAXES -(FISCAL YEAR - JULY 1 THRU JUNE 30)
DS XF XMS =X$ ?SZ,26
BS
Z9S• `l j
TOTAL OF COMMONWEALTH'S SHARE OF REAL ESTATE TAXES .......................... $
COMPUTED 3Y '01' / Z #Y9)
In counties where school taxes are normally calculated on a calendar year, or if school districts of 2nd. 3rd or
4th class have voted to change the tax year to the calendar year, all taxes should be combined in equation h0.
NOTE: FOR TOTAL TAKES, ELIMINATE D IN THE EQUATION.
3
SYMBOLS
D = DAMAGES - (TAKEN FROM PAGE 1 OF APPROVED APPRAISAL)
B = BEFORE VALUE (TAKEN FROM PAGE 1 OF APPROVED APPRAISAL)
F = FACTOR FOR DATE OF DEED OF EASEMENT, DECLARATION OF TAKING, OR
POSSESSION, WHICHEVER IS EARLIER, FROM THE APPROPRIATE FACTOR TABLE
M = TOTAL AMOUNT OF MUNICIPAL OR TOWNSHIP TAXES
C = TOTAL AMOUNT OF COUNTY TAXES
S = TOTAL AMOUNT OF SCHOOL TAXES
X = COMMONWEALTH'S SHARE OF MUNICIPAL OR TOWNSHIP TAXES.
Y = COMMONWEALTH'S SHARE OF COUNTY TAXES.
Z = COMMONWEALTH'S SHARE OF SCHOOL TAXES.
EXHIBIT NO. 1
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION
OF RIGHT OF WAY FOR S.R. 0015,
SECTION A12, A LIMITED ACCESS
HIGHWAY, IN THE TOWNSHIP
OF UPPER ALLEN
WILLIAM R. ROTHMAN, CHARLES F.
SCHUBERT, SAMUEL L. REED and ANNA
BIANCO, t/d/b/a ROTHMAN, SCHUBERT &
REED,REALTORS,
Plaintiffs
V.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Defendant
ORDER
CIVIL ACTION -- LAW
No. 00-2824 CIVIL TERM
EMINENT DOMAIN
PROCEEDINGS -- IN REM
AND NOW, this 'jD `"day of June, 2000, upon review of the Defendant/Condemnor's
Petition for Rule to Show Cause, Motion for Expedited Hearing and Motion to Consolidate
Similar Action, the Court enters the following:
A Rule is issued upon the Plaintiff/Condemnee to show cause why the preliminary
objections should not be dismissed.
2. The Motion for Expedited Hearing is GRANTED.
3. The Motion to Consolidate Similar Action is GRANTED. This case shall be
consolidated with the eminent domain case filed at No. 00-2856 for the purpose of resolving the
pending preliminary objections and the issue of possession, only.
;?.
Rule returnable and hearing with respect to the Preliminary Objections is hereby
scheduled for 2000, at : 30 o'clock, gym., in Court Room No.
of the Cumberland County Courthouse, Carlisle, Pennsylvania.
V
cc: Lisa Marie Coyne, Esq., Esq.
Christopher J. Clements, Esq.
V
\rpb
BY THE COURT,
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION
OF RIGHT OF WAY FOR S.R. 0015,
SECTION A12, A LIMITED ACCESS
HIGHWAY, IN THE TOWNSHIP
OF UPPER ALLEN
WILLIAM R. ROTHMAN, CHARLES F.
SCHUBERT, SAMUEL L. REED and ANNA
BIANCO, t/d/b/a ROTHMAN, SCHUBERT &
REED, REALTORS,
Plaintiffs
V.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Defendant
ORDER
CIVIL ACTION -- LAW
No. 00-2824 CIVIL TERM
EMINENT DOMAIN
PROCEEDINGS -- IN REM
AND NOW, this day of June, 2000, upon review of the Defendant/Condemnor's
Petition for Writ of Possession, the Court enters the following:
That the Plaintiffs/Condemnees herein have applied for their payment of
estimated just compensation in this case.
2. That the preliminary objections filed in this case are not of the type warranting
delay.
AND NOW, WHEREFORE, the request of the Defendant/Condemnor for possession is
GRANTED, subject to the following:
That the Defendant/Condemnor shall have the right to possession of the
condemned property upon payment of the estimated just compensation in the amount of
$106,300.00.
2. That said possession shall be of the lands as indicated on the
Defendant/Condemnor's recorded right of way plan, subject only to a modification of said plans
to either require access to a landlocked parcel, or to effectuate a total taking of the same, through
the process of ascertaining whether an alleged de facto taking has occurred.
3. The parties hereto shall retain all claims and defenses with regard to the issue of
the alleged de facto taking.
BY THE COURT,
cc: Lisa Marie Coyne, Esq., Esq.
Christopher J. Clements, Esq.
2
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
OFFICE OF CHIEF COUNSEL
By. Christopher J. Clements
Assistant Counsel in-Charge
Supreme Court LD. # 44699
A O. Box 8212
Harrisburg, PA 17105-8212
(717) 787-3128
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE CIVIL ACTION -- LAW
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF RIGHT-OF-WAY FOR S.R. 0015,
SECTION A12, A LIMITED ACCESS
HIGHWAY, IN THE TOWNSHIP OF
UPPER ALLEN
WILLIAM R. ROTHMAN, CHARLES F. No. 00-2824 CIVIL TERM
SCHUBERT, SAMUEL L. REED and ANNA
BIANCO, t/d/b/a ROTHMAN, SCHUBERT &
REED,REALTORS,
Plaintiff
V,
COMMONWEALTH OF PENNSYLVANIA, EMINENT DOMAIN
DEPARTMENT OF TRANSPORTATION, PROCEEDINGS--IN REM
Defendant
PETITION FOR WRIT OF POSSESSION
AND NOW, to wit, this 20TH day of June, 2000, the Commonwealth of Pennsylvania,
Department of Transportation, defendant and condemnor, by its attorney, Christopher J.
Clements, Assistant Counsel in-Charge, Right of Way Section, respectfully represents as follows:
On May 5, 2000, the condemnor filed a Declaration of Taking in the above-
captioned matter.
2. On or about June 9, 2000, William R. Rothman, Charles F. Schubert, Samuel L.
Reed and Anna Bianco, t/d/b/a Rothman, Schubert & Reed, Realtors, plaintiffs and condemnees
in this matter, filed preliminary objections to the declaration of taking.
3. In their preliminary objections, at para. 7, the condemnees acknowledged that it
has "completed the application" to the condemnor for a payment pro tanto (known in the
Commonwealth as an offer of estimated just compensation).
4. Department records validate this fact, showing that the condemnees have applied
for estimated just compensation in the amount of $106,300.00. See Exhibit A. Department
records indicate and it is believed, and therefore respectfully averred, that condemnees' payment
application had been processed by the Comptroller for the Commonwealth on or about June 16,
2000, and that delivery of the check is expected the week of June 26 to June 30.
Legal title to property condemned under the Eminent Domain Code vests in the
condemnor at the time a declaration of taking is filed. 26 P.S. § 1-406. The condemnees have
alleged a de facto taking prior to the filing of the declaration of taking in this case, a fact which
the condemnor disputes. Caselaw indicates that the condemnees must file preliminary objections
in such an instance at the risk of waiver. Nelis v. Redevelopment Authority of Allegheny
County, 315 A.2d 893 (Pa.Cmwlth., 1974). In either event, however, the condemnor has
acquired legal title and has a right to possession upon payment of the estimated just
compensation. 26 P.S. §1-407.
6. Caselaw provides that not all preliminary objections warrant delay. West
Whiteland Associates v. Department of Transportation, 690 A.2d 1266 (Pa.Cmwlth., 1997). The
preliminary objections in this case that have colorable merit (de facto taking prior to the filing of
a declaration of taking), even if subsequently proved, do not warrant delay but, instead, "would
require nothing more than correction of the plot plans and property plat". Id. 690 A.2d at 1270.
7, The remaining grounds for preliminary objection are specious and entirely without
merit:
a. Flawed Highway Design -- The condemnees cannot prove, and have even failed
to allege, fraud, bad faith and capriciousness, arbitrariness or unreasonableness sufficient to
permit this Court to interfere with the choice of design to be taken by required right of way under
the exercise of eminent domain. In Re Condemnation by Penn Township, 702 A.2d 614, 618
(Pa.Cmwlth., 1997).
b. Pursuit of Relocation of Residential Tenants/Payment for "Lost Rents" -- This
issue refers to matters collateral to the right and power to acquire property, see Hegedic v.
Department of Transportation, 304 A.2d 181 (Pa.Cmwlth., 1973), as well as to issues relating to
the ultimate issue of a determination of just compensation, In Re Condemnation by Penn
Township, 702 A.2d at 617 n.2, both of which are beyond the scope of preliminary objections
under the Eminent Domain Code.
WHEREFORE, for all of the foregoing reasons, since the condemnees have applied for
their payment of just compensation in this case, and since the preliminary objections are not of
the type warranting delay, the Commonwealth of Pennsylvania, Department of Transportation,
respectfully requests this Honorable Court to enter the attached order granting to the Department
possession of the condemned property upon payment of the estimated just compensation in the
amount of $106,300.00, said possession of the lands as indicated on the Department's recorded
right of plan, subject only to a modification of said plans to either require access to a landlocked
parcel, or to effectuate a total taking of the same, through the process of ascertaining whether a
de facto taking has occurred, the parties retaining all claims and defenses with regard to such
issue.
Respectfully submitted,
OFFICE OF
By:
Attorney for the Condemnor
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION
OF RIGHT OF WAY FOR S.R. 0015,
SECTION A12, A LIMITED ACCESS
HIGHWAY, IN THE TOWNSHIP
OF UPPER ALLEN
UNICO CORPORATION,
Plaintiff
V.
CIVIL ACTION -- LAW
No. 00-2856 CIVIL TERM
COMMONWEALTH OF PENNSYLVANIA, EMINENT DOMAIN
DEPARTMENT OF TRANSPORTATION, PROCEEDINGS -- IN REM
Defendant
CERTIFICATE OF SERVICE
I certify that I am serving the foregoing document in the manner and upon the
person as set forth below, which service satisfies the requirements of Pa.R.C.P. 440:
BY FIRST CLASS MAIL:
Lisa Marie Coyne, Esq.
COYNE & COYNE, P.C.
3901 Market Street
Camp Hill, PA 17011-4227
OFFICE OF
By
stoph
Asst. Cou
COUNSEL
in-Charge
Attorney for the Defendant
Dated: June 20, 2000
R W 438 (07/99)
REMI o. No.
080039 ?
Count CUMBERLAND
Fe Pro'. No. 005-0131-115
i
Route-Sec: . 0015-AI2 APPLICATION FOR
Claim No. 21000430000 PAYMENT OF ESTIMATED
Claimant ROTHMAN. SCHUBERT, & REED REALTORS JUST COMPENSATION
Property Address 717 Lisburn Road
IN RE: CONDEMNATION BY THE COMMONWEALTH OF IN THE COURT OF COMMON PLEAS OF
PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, CUMBERLAND COUNTY, PENNSYLVANIA
OF RIGHT OF WAY FOR STATE ROUTE 0015, SECTION NO. 00-2824 Civil Term
Al 2, A LIMITED ACCESS HIGHWAY, IN THE TOWNSHIP EMINENT DOMAIN PROCEEDINGS
OF UPPER ALLEN i
Date of Application: S/3/ loo
Application is hereby made for payment of One Hundred and Six Thousand, Three Hundred Dollars and 00/100
($106,300) Dollars, the amount estimated by the COMMONWEALTH to constitute just compensation for damages
which will accrue to the above property (or the interest of the APPLICANT(S) therein) as a result of the above
condemnation. In accordance with Section 407 of the Eminent Domain Code of 1964, the aforesaid payment will be
made and received without prejudice to the rights of either the COMMONWEALTH or the APPLICANT(S) to proceed
to a final determination of just compensation by filing a petition for the appointment of viewers within five years of the
date of this payment. The payment shall be considered only as payment pro-tanto of just compensation as finally
determined, it being understood that the COMMONWEALTH shall pay to the APPLICANT(S) the difference between
the aforesaid amount and any higher amount which may be finally determined
2. The COMMONWEALTH does not require actual physical possession of the property until either the start of
construction or written notice that possession is required (whichever occurs earlier) and until such time, APPLICANT(S)
remain(s) in possession with the right to use the property in such manner as will not result in physical or other change
to the contour or nature of the property, further APPLICANT(S) shall not erect or install any improvements on the
property. /1
INDIVIDUAL
Witness
Witness _
Witness `
T
Witness
(SEAL)
(SEAL)
CORPORATION, ASSOCIATION, CLUB, ETC.
I attest to the signature of the officer who has
executed this agreement and certify that execution
hereof has been duly authorized by the
of
r-VU
",, .181T
`JUN 2 0 2000 J(/
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION
OF RIGHT OF WAY FOR S.R. 0015,
SECTION A12, A LIMITED ACCESS
HIGHWAY, IN THE TOWNSHIP
OF UPPER ALLEN
CIVIL ACTION -- LAW
WILLIAM R. ROTHMAN, CHARLES F.
SCHUBERT, SAMUEL L. REED and ANNA
BIANCO, t/d/b/a ROTHMAN, SCHUBERT &
REED, REALTORS,
Plaintiffs
V.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Defendant
No. 00-2824 CIVIL TERM
EMINENT DOMAIN
PROCEEDINGS -- IN REM
RULE TO SHOW CAUSE
AND NOW, this may of June, 2000, upon review of the Defendant/Condemnor's
Petition for Writ of Possession, a Rule is issued upon the Plaintiffs/Condemnees to show cause
why possession should not be granted.
Rule returnable for legal argument and the taking of testimony or evidence, in the Court's
discretion, with respect to the Writ of Possession is hereby scheduled for a
2000, at ?:30 o'clock, Q,.m., in Court Room No. -]? of the Cumberland County
Courthouse, Carlisle, Pennsylvania.
cc: Lisa Marie Coyne, Esq., Esq.
Christopher J. Clements, Esq.
BY THE COURT,
45
At",
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION
OF RIGHT OF WAY FOR S.R. 0015,
SECTION A12, A LIMITED ACCESS
HIGHWAY, IN THE TOWNSHIP OF
UPPER ALLEN
NO. 00-2824 CIVIL TERM
CIVIL ACTION-LAW
WILLIAM R. ROTHMAN, CHARLES F
SCHUBERT, SAMUEL L. REED and
ANNA BIANCO, t/d/b/a ROTHMAN,
SCHUBERT & REED, REALTORS,
Plaintiffs
V.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Defendant.
IN REM-EMINENT DOMAIN
PLAINTIFFS' REPLY TO DEFENDANT'S PETITION FOR
WRIT OF POSSESSION
AND NOW COMES, the PlaintiffslCondemnees, ROTHMAN, SCHUBERT &
REED, REALTORS, by and through their attorney, Lisa Marie Coyne, and respectfully replies
as follows to Defendant's Petition for Writ of Possession:
1. Admitted. Furthermore, condemnor served condemnees notice of Declaration
of Taking on or about May 12, 2000.
2. Admitted.
3. Admitted.
4. Admitted. Furthermore, condemnees received the estimated just compensation
on Monday, June 26, 2000.
5. Denied. This is legal argument and conjecture to which no response is required
and therefore same is denied.
6. Denied. This is legal argument to which no response is required and therefore
same is denied.
7. a. Denied. This is legal argument to which no response is required and
therefore same is denied.
b. Denied. This is legal argument to which no response is required and
therefore same is denied.
WHEREFORE, Plaintiffs respectfully requests this Honorable Court to deny
Defendant's Petition for Writ of Possession.
Respectfully submitted:
COYNE & COYNE, P.C.
Dated: 2-1 S<!IV By:
isa Marie Co} ie, Esquire
3901 Market eet
Camp Hill, PA 17011-4227
(717) 737-0464
Pa. Supreme Ct. No. 53788
Attorney for Plaintiffs
10
CERTIFICATE OF SERVICE
I certify that I am serving the foregoing document by way of fax and personal service
upon the following individual:
William Cressler, Esquire
Office of Chief Counsel
Department of Transportation
P.O. Sox 8212
Harrisburg, PA 17105
Fax No.: 772-2741
Date: 27 7uN "
LA Marie Coyne, E uire
? `^i;
??
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r
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???:
=?i_
. ..
..
3,
. l'
:
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xav. IN RE: CONDEMNATION BY
THE COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION OF
RIGHT OF WAY FOR
S.R. 0015, SECTION A12,
A LIMITED ACCESS
HIGHWAY, IN THE
TOWNSHIP OF UPPER ALLEN
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
WILLIAM R. ROTHMAN,
CHARLES F. SCHUBERT,
SAMUEL L. REED and
ANNA BIANCO, t/d/b/a
ROTHMAN, SCHUBERT & REED,:
REALTORS,
Plaintiffs
V.
CIVIL ACITON - LAW
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION,
Defendant No. 00-2824 CIVIL TERM
ORDER OF COURT
AND NOW, this 28th day of June, 2000, upon
consideration of the Condemnees' preliminary objections in
the above-captioned matter, and of the Condemnor's petition
for writ of possession, and pursuant to an agreement
reached in open court in which the Condemnnor was
represented by William J. Cressler, Esquire, and Donald J.
Smith, Esquire, and the Condemnees were represented by Lisa
Marie Coyne, Esquire, it is ordered and directed as
follows:
The Department's request for writ of
possession is granted upon consent of Plaintiffs.
Plaintiffs further agree to withdraw the preliminary
objections in that a total settlement has been reached by
the parties.
William J. Cressler, Esquire
Donald J. Smith, Esquire
Assistant Counsel
Office of Chief Counsel
Department of Transportation
Commonwealth of Pennsylvania
Forum Place, 9th Floor
555 Walnut Street
Harrisburg, PA 17101-1900
For the Condemnor
Lisa Marie Coyne, Esquire
3901 Market Street
Camp Hill, PA 17011-4227
For the Condemnees
wcy
By the Court,
IN RE: CONDEMNATION BY TIRE
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION, OF THE
RIGHT-OF-WAY FOR STATE
ROUTE 0015, SECTION A12, A
LIMITED ACCESS HIGHWAY
IN THE TOWNSHIP OF UPPER
ALLEN
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
WILLIAM R. ROTHMAN, CHARLES : No. 00-2824 Civil Action-- Law
F. SCHUBERT, SAMUEL L. REED AND
ANNA BIANCO, t/d/b/a ROTHMAN,
SCHUBERT & REED, REALTORS,
Plaintiff-Condemnee
V.
COMMONWEALTH OF PENNSYLVANIA, : Eminent Domain Proceedings-IN REM
DEPARTMENT OF TRANSPORTATION, :
Defendant-Condemnor
TO THE PROTHONOTARY:
PRAECIPE
Kindly mark this action settled, discontinued, and ended.
COYNE & COYNE, P.C.
Dated: 9 - i '? - ov By: ;I "
Lisa Marie Co "ne, Esquire
3901 Market Street
Camp Hill, PA 17011-4227
(717) 737-0464
Pa. Supreme Ct. No. 53788
Attorney for Plaintiffs-Condemnees
cc: PennDOT
RSR, Realtors
? ?'?
C:.
C? .?
T, ?
-o c ?;' ??
??{???}}t
/ J,'
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=?' '-:
?+
L. C. Heim
KATHERMAN, HEIM & PERRY
Attorney I.D. No. 23155
345 East Market Street
York, PA 17403
(717) 854-5124
Attorneys for Petitioner
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: Condemnation by the
COMMONWEALTH OF
PENNSYLVANIA, Department of
Transportation, of the Right-of-Way
for State Route 0015, Section A12, a
Limited Access Highway in the
Township of Upper Allen
CARL E. DALLMEYER and
KELLY J. DALLMEYER
Plaintiff
vs.
Civil Action - LAW
NO. 00-2824
EMINENT DOMAIN PROCEEDING
IN REM
COMMONWEALTH OF
PENNSYLVANIA, PennDOT
Defendant
PETITION FOR THE APPOINTMENT OF BOARD OF
VIEWERS PURSUANT TO 26 P.S. § 1-502(a)
The petition of Carl E. Dallmeyer and Kelly J. Dallmeyer ("condemnees")
by their undersigned counsel, represents:
1. On May 5, 2000, condemnees were the owner in fee simple of property
located at in Upper Allen Township, Cumberland County, Pennsylvania.
2. On May 5, 2000, a declaration of taking was filed of record by the
Commonwealth of Pennsylvania, Department of Transportation ("condemnor"),
including the property herein. A copy of the declaration of taking is attached as
Exhibit "A." No preliminary objections to the declaration of taking have been
filed which remain undisposed.
3. The subject property is more fully described in Deed Book 163, Page
659, and is identified as Parcel No. 37 in the declaration of taking filed in this
matter as follows.
4. The names and addresses of all other condemnees and mortgagees known
to condemnee to have an interest in the subject property are as follows:
a. M& T Bank, 21 East Market Street, York, Pennsylvania, having a
first mortgage against the property.
5. By virtue of the declaration of taking condemnor condemned the property
taking a fee simple or absolute title in a portion of the property.
6. Condemnees and condemnor have been unable to agree upon the just
compensation for the property.
WHEREFORE, condemnee requests that this Court appoint three viewers to
assess the damages to which condemnee is entitled by reason of the condemnation.
KATHERMAN, HEIM
& PERRY
by: Jjwyzl?
. C. Heim
Attorney for Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF RIGHT OF WAY FOR STATE
ROUTE 0015, SECTIONA12,
A LIMITED ACCESS HIGHWAY IN THE TOWNSHIP OF UPPER
ALLEN
DECLARATION OF TAKING
Stuart A. Liner
Assistant Counsel
ID No. 15290
Commonwealth of Pennsylvania
Department of Transportation
Office of Chief Counsel
P.O. Box 8212
Harrisbur,, PA 17105-8212
.?
. r.
y
- s
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION, OF THE
RIGHT-OF-WAY FOR STATE
ROUTE 0015, SECTION A12, A
LIMITED ACCESS HIGHWAY IN
THE TOWNSHIP OF UPPER ALLEN
DECLARATION OF TAKING
TO THE HONORABLE, THE JUDGES OF-THE. SAID COURT:
This Declaration of Taking, based on the provisions of Article IV, Section 402, of
the Eminent Domain Code, Act of June 22, 1964, P. L. 84, 26 P. S. 1-402, as amended,
respectfully represents that:
The Condemnor is the Commonweaith of Pennsylvania, Department of
Transportation, acting through the Secretary of Transportation.
2. The address of the Condemnor is:
Commonwealth of Pennsylvania
Department of Transportation
Office of Chief Counsel
P.O. Box 8212 -
Harrisburg, PA 17105-8212
3. The Department of Transportation is authorized by the provisions of
Section 2003(e) of the Administrative Code of 1929, P. L. 177, 71 P. S. 513(e), as
amended, to acquire by gift, purchase, condemnation or otherwise, land in fee simple or
such other estate or interest as it shall determine, in the name of the Commonwealth for
all transportation purposes.
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EMINENT DOMAIN PROCEEff NG
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4. The within condemnation has been authorized by a plan signed by the
11
Secretary of Transportation on February 18, 2000, entitled "Drawings Establishing and
Re-establishing a Limited Access Highway Authorizing Acquisition of Right-of-Way for
State Route 0015, Section A12 R/W in Cumberland County, and State Route 2004, " a
copy of which plan was filed in the County Recorder's Office in Cabinet 3, Drawer 1 at
Page 130 on March 10, 2000.
5. The purpose of the within condemnation is to acquire property for
transportation purposes.
6. A Schedule of Property Condemned identifying and specifying the
location of the property hereby condemned is attached hereto and made a part hereof.
7. Plans showing the property hereby condemned may be inspected in the
Recorder's Office of the aforesaid County at the places indicated on the attached
Schedule of Property Condemned or, if not shown thereon, on the day of the filing of this
document being lodged for record or filed in said Recorder's Offices, where they may be
inspected.
8. The nature of the title hereby condemned is fee simple and a temporary
corstuction easement.
9. In the event there are recoverable minerals (including gas and oil) within
the areas, if any, hereby condemned in fee simple, the mineral rights (including rights to
gas and oil) in those areas are hereby excepted and reserved from this condemnation,
provided however, that the right of support of the areas condemned is included within the
scope of this condemnation, and no access from the surface of such areas for removal
purposes will be allowed without permission from the Commonwealth.
Page 1
COMMONWEALTH OF PENNSYLVANIA
R W437 t 10!99) DEPARTMENT OF TRANSPORTATION
SCHEDULE OF PROPERTY CONDEMNED
(Declaration of Taking)
REMIS Pro'. No.- 1080039 TYPE OF DESCRIPTION
Count 1 Cumberland D- Deed Description
Fed. Pro'. No. I Q05-0131-115 P- Plan lodged for recording with Notice
Municipality I Upper Allen Township of Condemnation
Route-Sec. 0015-A I2 - R- Plan now recorded in Recorder's. Office
Parcel
40
46
57
Claim
2 1000,1310000
21000460000
21000490000
Name, Mailing Address, Property
Interest of Condemnees, and
Location of Condemned Property
Carl E. Dallmeyer, A Married Man and
Kelly J. Dallmeyer, A Single Woman, as
Joint Tenants with the right of survivorship
4775 N. Sherman Street Ext.
Mt. Wolf, PA 17347 -
Location of Property
Deed Book 163, Page 659
%lilliam F. Rothman. Charles F. Schubert
and Samuel L. Reed, Anna Bianco,
Incorporated, William F. Rothman,
President
T,D%BIA Rothman, Schubert and Reed
Realtors
308 East Penn Dr;-,c
Enola. PA 17025
Location of Property
Deed Book Q-33, Page 1038
Country Square Partnership, A
Pennsylvania General Partnership
Ashcombe Products Company, General
Partner
John S. Thornton, CEO
19 North Baltimore Street
Dillsburg, PA 17019
Location of Property
Deed Book 204, Page 1 146
Alice R. Mounuz Single
899 Emily Drive
Mechanicsburg, PA 17055
Location of Property
Deed Book 134, Page 259
Attached
Exhibit 1
Number Type of
R
R
R
R
Plan (if any)
Page 130
Sheets #57, 26, 28 & 31
Cabinet 3. Drawer I
Page 130
Sheets #21.28. & 31
Cabinet 3, Drawer I
Page 130
Sheets # 1_2 & 3 I
Cabinet 3, Drawer I
Page 130
Sheets # 22 & 30
I hereby verify that the statements in this PETITION are true and correct to the
best of my knowledge information and belief. I understand that false statements
herein are made subject to the penalties of 18 PA.C.S. Sec. 4904, relating to unsworn
falsification to authorities.
DATE: March 2, 2005
CARL E. DALLMEYE
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: Condemnation by the Civil Action - LAW MAR p 4 2UU5 d??
COMMONWEALTH OF
PENNSYLVANIA, Department of
Transportation, of the Right-of-Way
for State Route 0015, Section A12, a NO. 00-2824
Limited Access Highway in the
Township of Upper Allen
CARL E. DALLMEYER and
KELLY J. DALLMEYER
Plaintiff
vs.
COMMONWEALTH OF
PENNSYLVANIA, PennDOT
Defendant
EMINENT DOMAIN PROCEEDING
IN REM
ORDER
AND NOW, this tAlay of i , 2005, upon consideration of
the petition of Carl E. Dallmeyer and Kelly J. Dallmeyer, the Court appoints:
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as a board of viewers to assess damages in the condemnation and further orders that the
board of viewers perform its duties in accordance with the law and Acts of Assembly and
grants leave to the board of viewers to issue an interlocutory report or interlocutory
reports covering such properties or claims as the board of viewers determines
appropriate.
By the Court:
J.
I
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF RIGHT OF WAY FOR S.R. 0015,
SECTION A12, A LIMITED ACCESS
HIGHWAY IN THE TOWNSHIP OF
UPPER ALLEN
CARL E. DALLEMYER and
KELLY J. DALLMEYER
Plaintiffs
V.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Defendant
TO THE PROTHONOTARY:
PRAECIPE
CIVIL ACTION -- LAW
No. 00-2824 CIVIL TERM
EMINENT DOMAIN
PROCEEDINGS
Kindly enter my appearance on behalf of the condemnor, Commonwealth of
Pennsylvania, Department of Transportation, the defendant in the above-captioned matter.
OFFICE OF CHIEF
p(manda G. Phily, Esquire
Attorney for the Defendant
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF RIGHT OF WAY FOR S.R. 0015,
SECTION A12, A LIMITED ACCESS
HIGHWAY IN THE TOWNSHIP OF
UPPER ALLEN
CARL E. DALLMEYER and
KELLY J. DALLMEYER,
Plaintiffs
V.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Defendant
CIVIL ACTION -- LAW
No. 00-2824 CIVIL TERM
EMINENT DOMAIN
PROCEEDINGS
CERTIFICATE OF SERVICE
I certify that I am serving the attached Praecipe for Entry of Appearance in the
manner and upon the person as set forth below, which service satisfies the
requirements of Pa.R.C.P.
BY FIRST CLASS MAIL:
Larry C. Heim, Esquire
KATHERMAN HEIM & PERRY
345 East Market Street
York, PA 17403
Dated:April`5, 2005
By:
Amanda G. Phily
Assistant Counsel
Attorney for the Defendant
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COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
GOVERNOR'S OFFICE OF GENERAL COUNSEL
Donald J. Smith, Assistant Counsel
Right of Way Section
Supreme Court I.D. #50483
P. O. Box 8212
HARRISBURG, PENNSYLVANIA 17105-8212
(717) 787-3128
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE CIVIL ACTION -- LAW
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF THE RIGHT-OF-WAY FOR STATE
ROUTE 0015, SECTION A12, A LIMITED
ACCESS HIGHWAY IN THE TOWNSHIP OF
UPPER ALLEN
CARL E. DALLMEYER and No. 00-2824
KELLY J. DALLMEYER,
Plaintiffs
V.
COMMONWEALTH OF PENNSYLVANIA, EMINENT DOMAIN
DEPARTMENT OF TRANSPORTATION, PROCEEDINGS -- IN REM
Defendant
PRAECIPE
TO THE PROTHONOTARY:
Kindly enter my appearance on behalf of the condemnor, Commonwealth of Pennsylvania,
Department of Transportation, the defendant in the above-captioned matter.
OFFICE OF CHI / UNSEL
By:
Donald J. Smith
Attorney for the Defendant
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IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF THE RIGHT-OF-WAY FOR STATE
ROUTE 0015, SECTION A12, A LIMITED
ACCESS HIGHWAY IN THE TOWNSHIP OF
UPPER ALLEN
CIVIL ACTION -- LAW
CARL E. DALLMEYER and
KELLY J. DALLMEYER
Plaintiffs
No. 00-2824
V.
COMMONWEALTH OF PENNSYLVANIA, EMINENT DOMAIN
DEPARTMENT OF TRANSPORTATION, PROCEEDINGS -- IN REM
Defendant
CERTIFICATE OF SERVICE
I certify that I am serving the attached Praecipe for Entry of Appearance in the manner
and upon the persons as set forth below, which service satisfies the requirements of Pa.R.C.P.
440.
BY FIRST CLASS MAIL:
Larry C. Heim, Esquire
Katherman Heim & Perry PC
345 East Market Street
York, PA 17403-5614
L
Dated: September / , 2006
Respectfully submitted,
OFFICE OF C F COUNSEL
By:
h
Donald J. *h
Assistant Counsel
Attorney for the Defendant
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AUG 882007P'Y
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF THE RIGHT OF WAY FOR STATE
ROUTE 0015, SECTION A12, A LIMITED
ACCESS HIGHWAY IN THE TOWNSHIP OF
UPPER ALLEN
CARL E. DALLMEYER and
KELLY J. DALLMEYER,
Plaintiffs
V.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Defendant
CIVIL ACTION -- LAW
No. 00-2824 CIVIL TERM
EMINENT DOMAIN
PROCEEDINGS -- IN REM
DEPARTMENT OF TRANSPORTATION'S
PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. On May 5, 2000, the Commonwealth of Pennsylvania, Department of Transportation
(hereinafter PennDOT) filed a Declaration of Taking at the above-referenced docket number.
2. The Declaration of Taking effectuated a partial taking of property owned by Carl E.
Dallmeyer and Kelly J. Dallmeyer, located in Upper Men To Cumberland County, being
operated as the Rolo Court Mobile Home Park (hereinaft ubject Property).
3. The effective before area of the subject property was 13.86 acres; the after area is 12.943
acres; the right of way taken by PennDOT consists of 0.917 acres and a Temporary Construction
Easement area in the amount of 0.245 acres.
PennDOT, all of which were consistent with the Viewers Plan. N.T. 15 -16. Mr. Dallmeyer further
testified that eight of the total one hundred twenty eight mobile home pads and a mailbox pavilion
were taken as a result of the partial taking. Mr. Dallmeyer also testified that the subject properly was
completely visible to traffic traveling in both directions on Route 15 prior to the highway project
which involved the placement of sound barriers. N.T. 15 -16. Mr. Dallmeyer admitted on cross-
examination that prior to the date of the take in May of 2000 he had not filed any subdivision plans
or any plans whatsoever with the township to develop the subject property other than as a mobile
home park. N.T. 17.
18. In response to a question from the Board of Viewers, Mr. DWInseyer testified that the moving
of the mail pavilion had no effect on the subject property. N.T. 18 -19.
19. Elliott W. Weinstein, a qualified valuation expert, testified on behalf of the condemnees.
20. PennDOT counsel stipulated to Mr. Weinstein's qualifications. N.T. 22
21. Mr. Weinstein testified from an appraisal report dated June 4, 2007 which was marked as
Exhibit O -1 and admitted into the record. N.T. 72.
22. Mr. Weinstein had actually prepared two appraisal reports relative to the subject property, an
earlier one dated August 22, 2006, which the Board of Viewers requested be provided to them
following the hearing. N.T. 33 - 39.
4
Pennsylvania, within which is situate the Rolo Court Mobile Home Park, was
Convenience Commercial ("CC")(emphasis added).
Obviously, this additional exhibit does not verify the zoning of the property in May 2000, the date of
the take.
28. Mr. Weinstein concluded that the highest and best use of the subject property before the
taking and as unaffected by the taking was a high quality commercial site. N.T. 26; Exhibit O-1 pp.
34 - 35.
29. Mr. Weinstein concluded that after the taking, as affected by the taking, the only use that
could be made of the subject property was as a mobile home park since, in his opinion, "the loss of
visibility and accessibility causes the subject to no longer be attractive for commercial development "
N.T. 31; Exhibit 0-1 pp. 37 - 38.
30. Mr. Weinstein notes repeatedly in his appraisal report that: "Itis noted thatshould the sound
barrier wall be removed, the damages would largely he limited to the loss of the eight (8) pad sites
taken." Exhibit O-1 Cover Letter dated June 4, 2007, pp. 4, 74.
31. Mr. Weinstein admits that an error in both appraisal reports was that accessibility to the
property before or after the take is an issue. N.T. 46, 59.
32. Mr. Weinstein admits that access to the property after the taking is not a negative and, in fact,
possibly safer. N.T. 46.
6
33. Mr. Weinstein testified that most of his damages or just compensation, with the exception of
the loss of the eight pad sites, is attributable to the presence of the sound barriers constructed as a
result of the project. N.T. 52 - 53.
34. Mr. Weinstein admitted that if loss of visibility to the property is determined to be
noncompensible, his damages would be reduced "significantly" and "quite substantially". N.T. 53.
35. Mr. Weinstein did not consult legal counsel or seek any legal opinion as to the visibility issue
upon which his damages are based. N.T. 53.
36. Mr. Weinstein testified that the change in height of the roadway did not have a major impact
on the subject property. N.T. 54.
37. Mr. Weinstein testified that although he `possibly considered" a sign that would appear
above the sound barrier alerting the traveling public to a commercial use located on the property, his
ultimate conclusion is that the subject property, after the taking, will no longer be attractive for
commercial development strictly because of the loss of visibility. N.T. 60 - 62.
38. Although Mr. Weinstein utilized 2006 data, six years after the date of the take, taken from the
condemnee's 2006 Revenue and Expense Statement, in preparing his income approach, and failed
to make any adjustments back to the year 2000, Mr. Weinstein did not believe this was a mistake.
N.T. 62 - 63; Exhibit 0-1 pp. 44 - 46. Mr. Weinstein was instructed by the Board of Viewers to
supplement his appraisal report utilizing year 2000 income and expense information and submitted
7
an addenda to the appraisal report on June 29, 2007, resulting in a reduction of damages in the
amount of three hundred thousand dollars ($300,000.00).
39. Jay D. Matthews, a qualified valuation expert, testified on behalf of PennDOT, following
condemnees' counsel's stipulation as to his qualifications. N.T. 73 - 87.
40. Mr. Matthews testified that he originally appraised the subject property in September of
1999 and later updated his appraisal to May 5, 2000, the date of taking. N.T. 74.
41. Mr. Matthews testified that he had met with Mr. Dallmeyer, discussed the use of the properly
with him and obtained financial statements going back several years from Mr. Dallmeyer. N.T. 75 -
76.
42. Because of the confusing nature of the zoning of the subject properly, Mr. Matthews spoke
with the Zoning Officer for Upper Allen Township and purchased a copy of the Zoning Ordinance
and the Zoning Map. N.T. 77 - 80. Mr. Matthews' understanding of the zoning of the subject
property, following his meetings with the Zoning Officer and reading of the Zoning Ordinance and
accompanying map, was that there was no specific amount of the subject property that was
determined to be Convenience Commercial or Suburban Residential but that based upon the Zoning
Map, more of the subject property was located in the Suburban Residential Zone rather than the
Commercial Convenience Zone. N.T. 80.
43. Mr. Matthews testified in detail regarding his utilization of both the market approach and the
income approach, having found comparable mobile home park sales and utilizing the financial
statements he had obtained from Mr. Dallmeyer. N.T. 75 - 77.
44. Mr. Matthews was cognizant of the date of taking of May 5, 2000 and made adjustments to
all of his comparables based upon that date and also utilized financial data based upon the year 2000.
N.T. 86; Exhibit C-5 (Appraisal Report of Jay D. Matthews). Mr. Matthews determined the
elements of damage to be the taking of the eight mobile home pad sites, a mailbox pavilion, asphalt
paving for driveways, and an allowance for the Temporary Construction Easement area. N.T. 82 -
83.
45. Mr. Matthews testified to total damages in the amount of $142,700.00. N.T. 82 - 83; Exhibit
C-5.
ARGUMENT
PennDOT is liable for payment of just compensation as to the condemnees for the taking,
injury or destruction of the subject property, as determined as set forth in the Eminent Domain Code,
26 P.S. §1-101 et seq. Just compensation shall consist of the difference between the fair market
value of the condemnee's entire property interest immediately before the condemnation and as
unaffected thereby and the fair market value of their property interest remaining immediately after
such condemnation and as affected thereby. See Section 602(a) of the Eminent Domain Code 26
P. S. § 1-602 (relating to measure of damages).
9
PennDOT is not responsible for any perceived damages alleged by the condemnees as a result
of the erection of the sound barriers which eliminate the view to the subject property from the public
highway. See In Re: Condemnation by the Delaware River Port Authority, 667 A.2d 766
(Pa.Cmwlth. 1995), appeal denied, _ Pa. 684 A.2d 120 (1996).
In Delaware River Port Authority, a billboard owner filed a Petition for Appointment of
Board of View after the Port Authority erected a sound barrier that obstructed the view of their
billboard. The question for the Court was whether an abutting property owner may recover
condemnation damages when the erection of sound barriers on a highway obstructs the view from
the highway of a billboard erected on the property. The Court concluded that the abutting property
owner did not have a right to have the billboard sign viewed by traffic on the highway and was not
entitled to compensation for a taking for the erection of sound barriers that obstructed the view of
the billboard.
In reaching its determination, the Commonwealth Court looked to analogous Supreme Court
cases to explain the rights of abutting property owners and the reasons their damages are limited. In
Wolf v. Commonwealth ofPennsylvania, Department ofHighways, 422 Pa. 34,220 A.2d 868 (1966)9
the Supreme Court had before it abutting property owners who operated a gas station and a motel.
The owners filed a claim for damages when an improvement in a highway made access to their
property more difficult. The Court said:
In this area of the law certain principles are well settled ... [I]n the regulation oftraffc and in
the interest of public safety, the Commonwealth, acting within the scope of its police powers
may make reasonable rules and regulations which may dilute or diminish the rights of
abutting property owners without liability to respond in damages. The theory is that, in such
field, the interests of the abutting property owner must be subordinated to the interest of the
public at large.
Wolf at 39-40, 220 A.2d at 871. The Court further indicated,
One commentator has aptly stated: "...what [the property owner] is losing, in fact, is the
10
benefit-entirely unearned by him-to his land of the commercially exploitable proximity
of heavy traffic. Since he has no right to this benefit and has done nothing to create it, he
should have little cause to complain at losing it" Covey, "Frontage Roads: To Compensate or
Not to Compensate", 56 N.W.U.L.Rev. 587, 599 (1961).
Id at 46, 220 A.2d at 874.
The Supreme Court reaffirmed Wolf in Hession Condemnation Case, 430 Pa. 273, 242 A.2d
432 (1968), cert. denied, 393 U.S.1049, 89 S.Ct. 685,21 L.Ed.2d 693 (1969). InHession, the Court
held that the fact that an elevated highway transformed what was a heavily traveled highway into a
street with only local traffic did not entitle the owner of a restaurant to condemnation damages. The
Court based its conclusion on holdings in previous cases that an abutting property owner on a public
highway has only the right to ingress and egress. The Court quoted the following statements with
approval:
Nor does the right of ingress or egress to or from one's property include any right in and to
the existing public traffic on the highway, or any right to have such traffic pass by one's
abutting property. The reason is that all traffic on public highways is controlled by the police
power of the State, and what the police power may give an abutting property owner in the
way of traffic on the highway it may take away, and by any such diversion of traffic, the State
and any of its agencies are not liable for any decrease of property values by reason of such
diversion of traffic, because such damages are `damnum absque injuria' or damage without
legal injury.
Id at 279-280, 242 A.2d at 435 (citation omitted).
As the above case law clearly indicates, any loss of visibility to the subject property, in the
case at bar, is simply noncompensable. Although every property owner has a right of reasonable
access to his or her property from a public roadway, there is no cognizable legal interest in
preserving a particular traffic flow or any given traffic pattern; therefore, having no right to the
continuation of an existing traffic pattern, condemnees may not demand compensation for a change
in that pattern which eliminates a view either to or from their property.
11
Although the Delaware River Fort Authority case dealt specifically with a billboard, it is
certainly analogous to the subject property which, like the billboard, was completely visible from the
highway prior to the erection of the sound barriers. Because a landowner does not have a property
right in the traffic which flows by his door, the condemnees herein, like the property owners in
Hession, have no compensable right to condemnation damages where the elevation of the highway
transforms what was a heavily traveled highway passing by their property into a street with only local
traffic.
The condemnees' appraiser, Mr. Weinstein, admitted that he did not consult legal counsel
or seek any legal opinion as to the visibility issue in question here. N.T. 53. Furthermore, Mr.
Weinstein admitted that if the loss of visibility turned out to be noncompensable, his damages would
be substantially, significantly reduced since most of his damages were attributable to the presence of
the sound barriers. Mr. Weinstein testified that although he "possibly considered" a sign that would
appear above the sound barrier alerting the traveling public to a commercial use located on the
property, his ultimate conclusion is that the subject property, after the taking, will no longer be
attractive for commercial development strictly because of the loss of visibility. N.T. 60 - 62.1
'It is respectfully suggested that Mr. Weinstein's conclusion that the subject
property, after the taking, will no longer be attractive for commercial
development is specious. Reference is made to the example cited to Mr. Weinstein
in cross-examination of the Harrisburg Wal-Mart that is situated significantly
downgrade from U.S. Route 322 and, whose presence is made known to motorists only
by the Wal-Mart sign that rises from below just beyond the guide rail. N.T. 60.
Likewise, any toddler whose car seat allows sufficient height to view through the
windshield does not have to physically see a McDonald's building or P1ayPlace to
know that one is near. A glimpse of the "golden arches" from a mile away will
cause the toddler to advise the driver that, sight unseen, there is a McDonalds
up ahead and they want to stop. The same can be said for signs with the logo of
any number of gasoline, motel, hotel, restaurants or other commercial
establishments alerting the traveling public that, although it may not be visible
from the highway, their business may be found at the next exit. Simply stated,
it cannot be reasonably concluded that the subject property will no longer be
attractive for commercial development strictly because of the loss of visibility.
12
Moreover, credibility determinations are for the Board of Viewers, the triers of fact in the
case at bar. Mr. Weinstein has now completed two appraisals, both with significant, admitted errors,
as well as an addenda at the request of the Board of Viewers. One of the Viewers commented at
hearing that "The appraisal we have now really is not worth anything from Mr. Weinstein?" N.T.
85-86. It is respectfully suggested that Mr. Weinstein's appraisal analysis of the subject property is
seriously flawed and that little weight, if any, should be given to the damages arrived at by Mr.
Weinstein. Additionally, Mr. Dallmeyer did not offer any opinion as to valuation or damages upon
which the Board could base its determination.
In stark contrast, Jay D. Matthews, PennDOT's qualified valuation expert, testified credibly
and at length regarding his analysis of the subject property and his determination of just
compensation that should be awarded to the condemnees. Mr. Matthews obtained comparable sales
of mobile home parks and utilized financial statements provided by Mr. Dallmeyer himself to arrive
at an income approach analysis in addition to the comparable sales market data approach. All of Mr.
Matthews' figures were adjusted back to the date of the taking, May 5, 2000, the only date that is
relevant for this Board's consideration. Consequently, this Board should afford considerable weight
to the testimony of PennDOT's qualified valuation expert and find damages in the amount of
$142,700.00.
CONCLUSIONS OF LAW
1. Pursuant to In Re: Condemnation by the Delaware River Port Authority, 667 A.2d 766
(Pa.Cmwlth.1995), and cases cited therein, the Board of Viewers concludes that condemnees are not
entitled to damages for any loss of visibility of the subject property due to the installation of sound
barriers as a result of the within project, such damages being "damnum absque injuria" or damage
without legal injury, and therefore noncompensable.
13
2. The evidence and testimony introduced at the Board of Viewers Hearing from condemnees'
qualified valuation expert is determined by this Board of Viewers to be not credible and violative of
the case law cited above.
3. The Board of Viewers concludes that the only credible valuation evidence and testimony
introduced at the Board of Viewers Hearing was offered by PennDOT's qualified valuation expert.
4. The Board of Viewers concludes that damages shall be awarded to the condemnees in the
amount of $142,700.00 with a credit to be given to PennDOT for any amounts of just compensation
previously paid to condemnees either directly or by deposit with the Prothonotary of Cumberland
County.
Respectfully submitted,
OFFICE OF CH:7-
Donald By:
J. Smi
Assistant Counsel
Attorney for the Defendant - Condemnor
Supreme Court I.D. No. 50483
Commonwealth of Pennsylvania,
Department of Transportation
400 North Street - 9 Floor
P.O. Box 8212
Harrisburg, PA 17105-8212
(717) 705-1277
Dated: ?/2- 7 07
14
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF THE RIGHT OF WAY FOR STATE
ROUTE 0015, SECTION A12, A LIMITED
ACCESS HIGHWAY IN THE TOWNSHIP OF
UPPER ALLEN
CIVIL ACTION -- LAW
CARL E. DALLMEYER and
KELLY J. DALLMEYER,
Plaintiffs
. No. 00-2824 CIVIL TERM
V.
COMMONWEALTH OF PENNSYLVANIA, EMINENT DOMAIN
DEPARTMENT OF TRANSPORTATION, PROCEEDINGS -- IN REM
Defendant
CERTIFICATE OF SERVICE
I certify that I am serving the attached Proposed Findings of Fact and Conclusions ofLaw in
the manner and upon the person as set forth below, which service satisfies the requirements of
Pa.R.C.P. 440.
BY FIRST CLASS MAIL:
Larry C. Heim, Esquire
KATHERMAN, HEIM & PERRY
345 East Market Street
York, PA 17403
William A. Duncan, Esquire
Chairman, Board of View
1 Irvine Row
Carlisle, PA 17013
Date: ?12--7107
Respectfully submitted,
OFFICE OF CS 'OLWSEL
By:
Donald J. Smith
Assistant Course
Attorney for the Defendant
15
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY : CIVIL ACTION - LAW
THE COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION, OF RIGHT OF
WAY FOR S.R. 0015, SECTION A 12
A LIMITED ACCESS HIGHWAY IN
THE TOWNSHIP OF UPPER ALLEN ;
: NO. 00-2824 CIVIL TERM
CARL E. DALLMEYER and
KELLY J. DALLMEYER,
Plaintiffs
V.
COMMONWEALTH OF
: EMINENT DOMAIN PROCEEDINGS
PENNSYLVANIA, .
DEPARTMENT OF TRANSPORTATION:
Defendant
NOTICE OF FILING OF REPORT OF VIEWERS
Larry C. Heim, Esq. Donald J. Smith, Esq. Mr. R. Fred Hefelfinger
KATHERMAN, HEIM & Assistant Counsel, Right of 4 Todd Circle, Apt. D.
PERRY Way Section Carlisle, PA 17013
345 East Market Street
York, PA 17403
Mr. James P. Sheya
433 Mooreland Avenue
Commonwealth of PA -
Department of Transportation
P.O. Box 8212
Harrisburg, PA 17015-8212
William A. Duncan, Esq.
1 Irvine Row
Carlisle, PA 17013 Carlisle, PA 17013
Enclosed herein please find report of the Board of View dated
2008, concerning the premises owned by Plaintiffs located in Upper Allen Town 'p. The daid
report dhall be filed in the Office of the Prothonotary of the Court of Common Pleas for
Cumberland County on J VI -f I I , 2008. The report shall become final unless
an appeal therefrom is filed within thirty (30) days from the date of the report is filed.
VBod oNie
William A. Duncan, Chairman
Board of View
Board Wf V
Diu \11, ._-
James Sficyck,
Board of Vie
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY : CIVIL ACTION - LAW
THE COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION, OF RIGHT OF:
WAY FOR S.R. 0015, SECTION A 12 .
A LIMITED ACCESS HIGHWAY IN .
THE TOWNSHIP OF UPPER ALLEN
NO. 00-2824 CIVIL TERM
CARL E. DALLMEYER and
KELLY J. DALLMEYER,
Plaintiffs
V.
COMMONWEALTH OF EMINENT DOMAIN PROCEEDINGS
PENNSYLVANIA, -
DEPARTMENT OF TRANSPORTATION:
Defendant
REPORT OF CHAIRMAN OF VIEWERS
TO THE HONORABLE. THE JUDGES OF SAID COURT:
The undersigned Chairman of Viewers respectively reports:
HISTORY OF THE CASE
1. On May 5, 2000, the Commonwealth of Pennsylvania, Department of
Transportation (hereinafter PennDOT) filed a Declaration of Taking at the above-referenced
docket number.
2. The Declaration of Taking effectuated a partial taking of property owned by Carl
E. Dallmeyer and Kelly J. Dallmeyer, located in Upper Allen Township, Cumberland County,
being operated as the Rolo Court Mobile Park (hereinafter Subject Property).
3. The effective before area of the subject property was 13.86 acres; the after area is
12.943 acres; the right of way taken by PennDOT consists of 0.917 acres and a Temporary
Construction Easement area in the amount of 0.245 acres.
4. A Notice to Proceed was given to the Department's Contractor on September 5,
2000, consequently, any delay damages to be awarded would accrue from this date.
5. On or about March 3, 2005, the Dallmeyers, through counsel, filed a Petition for
the Appointment of a Board of Viewers pursuant to 26 P.S. §1-502(a). See Exhibit "A" attached
6. By Order of Court of March 19, 2005, the Court appointed William A. Duncan,
Esquire, Chairman, Fred R. Hefelfinger and James Sheya as a Board of Viewers to assess
damages in the condemnation.
7. On February 8, 2007, a Notice of View was provided to counsel and members of
the Board of View scheduling a site view of the subject property for March 20, 2007. See Exhibit
"B" attached
8. By letter of March 19, 2007, the Board of Viewers Chairman advised that the
view scheduled for March 20, 2007 was postponed. See Exhibit "C" attached
9. On March 29, 2007, counsel and members of the Board were provided with a
Notice of View scheduling the Site View of the subject property for May 17, 2007. See Exhibit
"D" attached
10. The Site View occurred on May 17, 2007, at which time counsel for PennDOT
provided counsel for the Dallmeyers and the Board of Viewers with copies of the Board of
Viewers Plan. Potential dates for the Hearing in the within matter were also discussed at the
conclusion of the Site View.
11. Both parties desired that a Hearing be scheduled at the Board's earliest
convenience and counsel for both parties waived formal hearing notice requirements.
12. On June 8, 2007, the Board of Viewers scheduled a Hearing in the above matter
for June 26, 2007 in the Conference Room of the law firm of Duncan & Hartman, P.C., One
Irvine Row, Carlisle, Pennsylvania. See Exhibit "E" attached
13. The Board of Viewers, the parties, their witnesses and counsel were present on the
stated date and time for the taking of testimony in the above matter.
14. PennDOT arranged for a court reported to be present to transcribe the notes of
testimony.
15. During the course of the Hearing, the Chairman indicated that the Board of
Viewers may wish to undertake another view of the subject property either on their own or with
counsel present. Both counsel stipulated to a Waiver of Notice for any possible second view
which may be conducted by the Board of Viewers. Notes of Testimony (hereinafter N.T.) 20-21.
16. Carl E. Dallmeyer testified on behalf of the condemnees. N.T. 14-19.
17. Mr. Dallmeyer testified that he, along with his sister, Kelly Rodgers, was an
owner of the Rolo Court Mobile Home Park and had been an owner since August of 1997 when
they acquired the property from their father who had purchased it some fteen years prior to
August of 1997, N.T. 14. Mr. Dallmeyer described the location and size of the subject property
and the partial taking by PennDOT, all of which were consistent with the Viewers Plan. N.T. 15-
16. Mr. Dallmeyer further testified that eight (8) of the total one hundred, twenty eight (128)
mobile home pads and a mailbox pavilion were taken as a result of the partial taking. Mr.
Dallmeyer also testified that the subject property was completely visible to traffic traveling in
both directions on Route 15 prior to the highway project which involved Ithe placement of sound
barriers. N.T. 15-16. Mr. Dallmeyer admitted on cross-examination that prior to the date of the
take in May 2000 he had not filed any subdivision plans or any plans with the township to
develop the subject property other than as a mobile home park. N.T. 17.
18. In response to a question from the Board of Viewers, Mr. Dallmeyer testified that
the moving of the mail pavilion had no effect on the subject property. N.T. 18-19.
19. Elliott W. Weinstein, a qualified valuation expert, testified on behalf of the
condemnees.
20. PennDOT counsel stipulated to Mr. Weinstein's qualifications. N.T. 22.
21. Mr. Weinstein testified from an appraisal report dated June 4, 2007 which was
marked as Exhibit 0-1 and admitted into the record. N.T. 72.
22. Mr. Weinstein had actually prepared two (2) appraisal reports relative to the
subject property, and earlier one dated August 22, 2006, which the Board of Viewers requested
be provided to them following the Hearing. N.T. 33-39.
23. Mr. Weinstein testified that the August 22, 2006 appraisal report had been
prepared by another appraiser in his company who is no longer with the firm, although Mr.
Weinstein acted in a review appraiser capacity, signed the appraisal report and concurred with the
opinions expressed therein. N.T. 39-42.
24. As to the zoning of the subject property in 2000, Mr. Weistein testified that the
best he could determine was that is was half ('/z) zoned commercial convenience and half (Y2)
zoned suburban residential. N.T. 45.
25. Since the precise zoning of the subject property on the date of the take, May 5,
2000, was unclear, the Board of Viewers permitted the condemnee to submit a Supplemental
Exhibit following the Hearing from Upper Allen Township which was provided by condemnee's
counsel under cover letter of July 12, 2007.
26. The letter from Upper Allen Township Solicitor William E. Miller, Jr., dated July
11, 2007, indicates, in pertinent part, as follows:
This confirms my previous telephone advice to you that in
May 2002 the zoning designation for real property in Upper
Allen Township, Cumberland County, Pennsylvania, within
which is situate the Rolo Court Mobile Home Park, was
Convenience Commercial ("CC")(emphasis added).
Obviously, this additional exhibit does not verify the zoning of the property in May 2000, the
date of the take.
27. Mr. Weinstein concluded that the highest and best use of the subject property
before the taking and as unaffected by the taking was a high quality commercial site. N.T. 26;
Exhibit 0-1 pp. 34-35.
28. Although Mr. Weinstein utilized 2006 data, six (6) years after the date of the
take, taken from the condemnee's 2006 Revenue and Expenses Statements in preparing his
income approach, and failed to make any adjustments back to the year 2060, Mr. Weinstein did
not believe this was a mistake. N.T. 62-63; Exhibit 0-1pp. 4446. Mr. Weinstein was instructed
by the Board of Viewers to supplement his appraisal report utilizing year 2000 income and
expense information and submitted an addendum to the appraisal report on June 29, 2007,
resulting in a reduction of damages to Seven Hundred Thousand Dollars ($700,000.00).
29. Jay D. Matthews, a qualified valuation expert, testified on behalf of PennDOT,
following condemnees' counsel's stipulation as to his qualifications N.T. 73-87.
30. Mr. Matthews testified that he originally appraised the subject property in
September of 1999 and later updated his appraisal to May 5, 2000, the date of the taking. N.T.
74.
31. Mr. Matthews testified that he had met with Mr. Dallmeyer, discussed the use of
the property with him and obtained financial statements going back several years from Mr.
Dallmeyer. N.T. 75-76.
32. Because of the confusing nature of the zoning of the subject property, Mr.
Matthews spoke with the Zoning Officer for Upper Allen Township and purchased a copy of the
Zoning Ordinance and the Zoning Map. N.T. 77-80. Mr. Matthews' understanding of the zoning
of the subject property, following his meetings with the Zoning Officer and reading of the Zoning
Ordinance and accompanying map, was that there was no specific amount of the subject property
that was determined to be Convenience Commercial or Suburban Residential but that based upon
the Zoning Map, more of the subject property was located in the Suburban Residential Zone
rather than the Commercial Convenience Zone. N.T. 80.
33. Mr. Matthews testified to total damages in the amount of One Hundred Forty-One
Thousand Seven Hundred Dollars ($142,700.00). N.T. 82-83; Exhibit C-5.
34. Mr. Matthews reduced expenses by the same pro rata formula as income was
reduced.
DISCUSSION
PennDOT is liable for payment of just compensation as to the condemnees for the taking,
injury or destruction of the subject property, as determined as set forth in the Eminent Domain
Code, 26 P.S. §1-101 et. Seq. Just compensation shall consist of the difference between the fair
market value of the condemnee's entire property interest immediately before the condemnation
and as unaffected thereby and the fair market value of their property interest remaining
immediately after such condemnation and as affected thereby. See Section 602(a) of the Eminent
Domain Code 26 P.S. §1-602 (relating to measure of damages).
PennDOT is not responsible for any perceived damages alleged by the condemnees as a
result of the erection of the sound barriers which eliminate the view to the subject property from
the public highway. See In RE. Condemnation by the Delaware River Part Authority, 667 A.2nd
766 (Pa.Cmwlth. 1995), appeal denied, Pa. 9 684 A.2d 120'(1996).
In Delaware River Port Authority, a billboard owner filed a Petition for Appointment of
Board of View after the Port Authority erected a sound barrier that obstructed the view of their
billboard. The question for the Court was whether an abutting property ow: ner may recover
condemnation damages when erection of sound barriers of a highway obstructs the view from the
highway of a billboard erected on the property. The Court concluded that the abutting property
owner did not have a right to have the billboard sign viewed by traffic on the highway and was
not entitled to compensation for the taking for the erection of sound barriers that obstructed the
view of the billboard.
In reaching its determination, the Commonwealth Court looked to analogous Supreme
Court cases to explain the rights of abutting property owners and the reasons their damages are
limited. In Wolf v. Commonwealth of Pennsylvania, Department of Highways, 422 Pa. 34, 220
A.2d 868 (1966), the Supreme Court held before it abutting property owners who operate a gas
station and a motel. The owners filed a claim for damages when an improvement in a highway
made access to their property more difficult. The Court said:
In this are of the law certain principles are well settled...[I]n the
regulation of traffic and in the interest of public safety, the
Commonwealth, acting within the scope of its police powers may
make reasonable rules and regulations which may dilute or diminish
the rights of abutting property owners without liability to respond in
damages. The theory is that, in such field, the interests of the abutting
property owner must ve subordinated to the interest of the public at
large.
Wolf at 39-40, 220 A.2d at 871. The Court further indicated,
One commentator has aptly stated: "...what [the property owner] is
losing, in fact, is the benefit-entirely unearned by him to his land
of the commercially exploitable proximity of heavy traffic. Since he
has no right to this benefit and has done nothing to create it, he should
have little cause to complain at losing it" Covey, "Frontage Roads: To
Compensate of Not to Compensate:, 56 N.W.U.L.Rev. 587, 599
(1961).
Id at 46, 220 A.2d.at 874.
The Supreme Court reaffirmed Wolf in Hession Condemnation Case, 430 Pa. 273, 242A.2d
432 (1968), cert. denied, 393 U.S.1049, 89S.Ct. 685, 21 L.Ed.2d 693 (1969). In Hession, the Court
held that the fact that an elevated highway transformed what was a heavily traveled highway into a
street with only local traffic did not entitle the owner of a restaurant to condemnation damages. The
Court based its conclusion on holdings in previous cases that an abutting property owner on a public
highway has only the right to ingress and egress. The Court quoted the fbllowing statements with
approval:
Nor does the right of ingress of egress to or from one's property
include any right in and to the existing public traffic on the highway,
or any right to have such traffic pass by one's abutting property. The
reason is that all traffic on public highways is controlled by the police
power of the state, and what the police power may give an abutting
property owner in the way of traffic on the highway, it may take
away, and by any such diversion of traffic, the State and any of its
agencies are not liable for any decrease of property values by reason
of such diversion of traffic, because such damages are "damnum
absque injuria" or damage without legal injury.
Id, at 279-280, 242 A.2d at 435 (citation omitted).
FINDING OF BOARD
1. Pursuant to In Re: Condemnation by the Delaware River Port Authority, 667, A.2d 766
(Pa.Cmwlth 1995), and cases cited therein, the Board of Viewers concludes that condemnees are not
entitled to damages for any loss of visibility of the subject property due to the installation of sound
barriers as a result of the within project, such damages being "damnum absque injuria" or damage
without legal injury, and therefore noncompensable.
CONCLUSIONS
1. The Board of View disagrees with both appraisals and finds that condemnees expenses do
not decrease over pro rata with loss of pads as calculated by condemner's experts.
2. The Board of View also finds that the reduced development potential of the smaller site is
an item of damages not fully addressed by Commonwealth's appraisal or experts.
3. Therefore, the Board of Viewers concludes that damages shall be awarded to the
condemnees in the amount of Two Hundred Seventy Thousand Dollars ($ 270,000.00) with a
credit to be given to PennDOT for any amounts of just compensation previously paid to
condemnees either directly or by deposit with the Prothonotary of Cumberland County.
Respectfully submitted,
v
Date:
William A. Duncan, Chairman
The Board of View having performed duties related to its appointment prior to said decision. An
invoice and Bill of Cost is hereby submitted to the Court.
William A. Duncan, Chairman 3 days @ 375.00 $ 1,125.00
2 views @ $375.00 750.00
1 hearing @ $375.00 375.00
1 deliberation @ $375.00 375.00
Postage Certified (12 cert. x $4.64 94.43
= 55.68 + 4 cert. x $5.21 = 20.84)
Fred Hefelfinger, Viewer
James Sheya, Viewer
Date: p- O)w
Misc. Post - 20 x .42 = 8.40 +
cert. - 4 x 4.64 = 18.56)
Mileage 80 x.50 cents per mile
Subtotal
2 days @ 250.00
1 hearing @ $250.00
1 deliberation @ $250.00
Subtotal
2 days @ $ 250.00
1 hearing @ $250.00
1 deliberation @ $250.00
Mileage 80 x .50 cents per mile
TOTAL COST
A.
Date: 01) p/y'
Date: 07111 k
ames
sewer
29.96
40.00
$ 2,789.39
$ 500.00
250.00
250.00
$ 1,000.00
$ 500.00
250.00
250.00
40.00
$ 1,040.00
$ 4,829.39
1XI
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: Condemnation by the
COMMONWEALTH OF
PENNSYLVANIA, Department of
Transportation, of the Right-of-Way
for State Route 0015, Section A12, a
Limited Access Highway in the
Township of Upper Allen
CARL E. DALLMEYER and
KELLY J. DALLMEYER
Plaintiff
vs.
COMMONWEALTH OF
PENNSYLVANIA, PennDOT
Defendant
Civil Action - LAW
NO. 00-2824
014 2005 ,
EMINENT DOMAIN PROCEEDING
IN REM
ORDER
AND NOW, this &ay of 0421 c, L, 2005, upon consideration of
the petition of Carl E. Dallmeyer and Kelly J. Dallmeyer, the Court appoints:
Z),. 153
-LA A . z
as a board of viewers to assess damages in the condemnation and further orders that the
board of viewers perform its duties in accordance with the law and Acts of Assembly and
grants leave to the board of viewers to issue an interlocutory report or interlocutory
reports covering such properties or claims as the board of viewers determines
appropriate.
By the Court:
J.
'IA's
l 1, % ? `lam
I .,
J4
L. C. Heim
KATHERMAN, HEIM & PERRY
Attorney I.D. No. 23155
345 East Market Street
York, PA 17403
(717) 854-5124
Attorneys for Petitioner
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: Condemnation by the
COMMONWEALTH OF
PENNSYLVANIA, Department of
Transportation, of the Right-of-Way
for State Route 0015, Section A12, a
Limited Access Highway in the
Township of Upper Allen
CARL E. DALLMEYER and
KELLY J. DALLMEYER
Plaintiff
VS.
Civil Action - LAW
NO. 00-2824
EMINENT DOMAIN PROCEEDING
IN REM
COMMONWEALTH OF
PENNSYLVANIA, PennDOT
Defendant
PETITION FOR THE APPOINTMENT OF BOARD OF
VIEWERS PURSUANT TO 26 P. S. § 1-502(a)
The petition of Carl E. Dallmeyer and Kelly J. Dallmeyer ("condemnees")
by their undersigned counsel, represents:
1. On May 5, 2000, condemnees were the owner in fee simple of property
located at in Upper Allen Township, Cumberland County, Pennsylvania.
2. On May 5, 2000, a declaration of taking was filed of record by the
Commonwealth of Pennsylvania, Department of Transportation ("condemnor"),
including the property herein. A copy of the declaration of taking is attached as
Exhibit "A." No preliminary objections to the declaration of taking have been
filed which remain undisposed.
3. The subject property is more fully described in Deed Book 163, Page
659, and is identified as Parcel No. 37 in the declaration of taking filed in this
matter as follows.
4. The names and addresses of all other condemnees and mortgagees known
to condemnee to have an interest in the subject property are as follows:
a. M& T Bank, 21 East Market Street, York, Pennsylvania, having a
first mortgage against the property.
5. By virtue of the declaration of taking condemnor condemned the property
taking a fee simple or absolute title in a portion of the property.
6. Condemnees and condemnor have been unable to agree upon the just
compensation for the property.
WI1EREFORE, condemnee requests that this Court appoint three viewers to
assess the damages to which condemnee is entitled by reason of the condemnation.
KATHERMAN, BEIM
& PERRY
by:
. C. Heim
Attorney for Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OFRIGHT OF WAY FOR STATE
ROUTE 0015, SECTION A 12,
A LIMITED ACCESS HIGHWAY IN THE TOWNSHIP OF UPPER
ALLEN
DECLAR,kTION OF TAKING
Stuart A. Liner
Assistant Counsel
ID No. 15290
Commonwealth of Pennsylvania
Department of Transportation
Office of Chief Counsel
P.O. Box 8212
Harrisbur,cr PA 17105-82121
Tq.
?. .'z.`.u, • sue!'
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION, OF THE
RIGHT-OF-WAY FOR STATE
ROUTE 0015, SECTION A12,.A-
LIMITED ACCESS-HIGHWAY IN
THE TOWNSHIP OF UPPER ALLEN
NO. Dd • oZ ga V e?d
C--)
EMINENT DOMAIN PROCEEI?3,VG
.'r
IN REM
DECLARATION OF TAKING
-L ...1
TO THE HONORABLE, THE JUDGES OF-THE SAID COURT:
This Declaration of Taking, based on the provisions of Article IV, Section 402, of
the Eminent Domain Code, Act of June 22, 2 904, P. L. 84; 26 P. S. 1-402, as amended,
respectfully represents that:
1. The condemnor is the Commonwealth of Pennsylvania, Department of
Transportation, acting through the Secretary of Transportation.
2. 'The address of the Condemnor is:
Commonwealth of Pennsylvania
Department of Transportation
Office of Chief Counsel
P.O. Box 8212 -
Harrisburg, PA 17105-8212
3. The Department of Transportation is authorized by the provisions of
Section 2003(e) of the Administrative Code of 1929, P: L. 177, 71 P. S. 513(e), as
amended, to acquire by gift, purchase, condemnation or otherwise, land in fee simple or
such other estate or interest as it shall determine, in the name of the Commonwealth for
all transportation purposes.
i
7-1
Ail
?7-
4. The within condemnation has been authorized by a plan signed by the
11
Secretary of Transportation on February 18, 2000,. entitled "Drawings Establishing ' and
Re-establishing a Limited Access Highway Authorizing Acquisition of Right-of-Way for
State Route 0015, Section A12 R/W in Cumberland County, and State Route 2004, " a
copy of which plan was filed in the County Recorder's Office in Cabinet 3, Drawer 1 at
Page 130 on March 10, 2000.
5. The purpose of the within condemnation is to acquire property for
transportation purposes.
6. A Schedule of Property Condemned identifying and specifying the
location of the property hereby condemned is attached hereto and made a part hereof.
7. Plans showing the property hereby condemned may be inspected in the
Recorder's Office of the aforesaid County at the places indicated on the attached,
Schedule of Property Condemned or, if not shown thereon, on the day of the filing of this
document being lodged for record or filed in said Recorder's Offices, where they may be
inspected.
8. The nature of the title hereby condemned is fee simple and a temporary
corstuction easement.
9. In the event there are recoverable minerals (including gas and oil) within
the areas, if any, hereby condemned in fee simple, the mineral rights (including. rights to
gas and oil) in those areas are hereby excepted and reserved from this condemnation,
provided however, that the right of support of the areas condemned is included within the
scope of this condemnation, and no access from the surface of such areas for removal
purposes will be allowed without permission from the Commonwealth.
-VII
a J. ur : _ -
COMMONWEALTH OF PENNSYLVANIA
R W437 (10/99) DEPARTMENT OF TRANSPORTATION
SCHEDULE OF PROPERTY CONDEMNED
(Declaration of Taking)
BEMIS Pro'. No.- 1 080039
Count Cumberland
Fed. Pro'. No. ! Q05-0131.-1 15
Municipality I Upper Allen Township_
Route-Sec. 0015-A 12
TYPE OF DESCRIPTION .
D- Deed Description
P- Plan lodged for recording with Notice
of Condemnation
- R- Plan now recorded in Recorder's.Office
Page I
040
Parcel
No.
Claim
Number
Name; Mailing Address, Property
Interest of Condemnees, and
Location of Condemned Property Attached
Exhibit
Number
if an
'Type of
Description
Plan (if any)
Recorded in
37 21000330000 Carl E. Dallmeyer, A Married Man and R Cabinet 3, Drawer I
Kelly J. Dallmeyer. A Single Woman, as Page 130
Joint Tenants with the right of survivorship Sheets #57, 26, 28 & 31
4775 N. Sherman Street Ext.
Mt. Wolf, PA 17347
Location of Property
Deed Book 163, Page 659
-
40 i 21000430000 William F. Rothman. Charles F. Schubert ff?
I i R ?. Cabinet 3. Drawer I
and Samuel L. Reed, Anna Bianco, Page 130
Incorporated, William F. Rothman, I Sheets #21, 28. & 31
President ,
T D%B/A Rothman. Schubert and Reed
Realtors
308 East Penn Drive 1
Enola. PA 17025
i '
Location of Property
Deed Book Q-33, Page 1038
46 21000460000 Country Square Partnership, A R Cabinet 3. Drawer I
Pennsylvania General Partnership Page 130
Ashcombe Products Company,- General - Sheets # 22 & 31 .-
Partner -
John S. Thornton, CEO
19 North Baltimore Street
Dillsburg, PA 17019
Location of Property
Deed Book 204; Page 1146
57 21000490000 Alice R. Mountz, Single R Cabinet 3, Drawer I
899 Emily Drive Page 130
Mechanicsburg, PA 17055 Sheets # 22 & 30
Location of Property
Deed Book 134, Page 259
i=
I hereby verify that the statements in this PETITION are true and correct to the
best of my knowledge information and belief. I understand that false statements
herein are made subject to the penalties of 18 PA.C.S. Sec. 4904, relating to unsworn
falsification to authorities.
xe,
?
DATE: March 2, 2005
CARL E. DALLMEYE
rt?31 Ta COPY
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY
THE COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION, OF RIGHT OF
WAY FOR S.R. 0015, SECTION A 12
A LIMITED ACCESS HIGHWAY IN
THE TOWNSHIP OF UPPER ALLEN
: CIVIL ACTION - LAW
: NO. 00-2824 CIVIL TERM
CARL E. DALLMEYER and
KELLY J. DALLMEYER,
Plaintiffs
V.
COMMONWEALTH OF EMINENT DOMAIN PROCEEDINGS
PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Defendant
NOTICE OF VIEW
TO:
Larry C. Heim, Esq.
KATHERMAN, HEIM & PERRY
345 East Market Street
York, PA 17403
Donald J. Smith, Esq.
Assistant Counsel, Right of Way Section
Commonwealth of PA - Department of
Transportation
P.O. Box 8212
Harrisburg, PA 17015-8212
R. Fred Hefelfinger
247 West Baltimore Street
Carlisle, PA 17013
William A. Duncan, Esq.
1 Irvine Row
Carlisle, PA 17013
James Sheya
433 Mooreland Avenue
Carlisle, PA 17013
Prothonotary's Office
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
NOTICE IS HEREBY GIVEN that an Order of the Court of Common Pleas of Cumberland
County has been issued to William A. Duncan, Esquire, James Sheya and Fred Hefelfinger, directing
them to determine a just compensation for the condemnation of said premises. The Viewers will
meet at the premises on March 20, 2007, at 9:30 A.M. for the performance of their duties under said
Order. All parties interested may attend at said time and place to accompany the said Viewers and
present their objections.
Date: r--?bce? --,.2007
By
William A. Duncan, Esquire
Chairman, Board of View
WAD/jda
William A. Duncan
Susan J. Hartman
Duncan & Hartman, P.C.
Attorneys at Law
One Irvine Row
Carlisle, Pennsylvania 17013
March 19, 2007
Larry C. Heim, Esq.
KATHERMAN, HEIM & PERRY
345 East Market Street
York, PA 17403
Dear Counsel:
FPY?tO4?
(717) 249-7780
FAX (717) 249-7800
dhdlaw@planetcable .net
Donald J. Smith, Esq.
Assistant Counsel, Right of Way Section
Commonwealth of PA - Department of
Transportation
P.O. Box 8212
Harrisburg, PA 17015-8212
RE: Carl E. Dallmeyer and Kelly J. Dallmeyer v.
Commonwealth of Pennsylvania,
Department of Transportation
No. 00-2824 (Cumberland County)
The View scheduled for March 20, 2007 has been postponed. We would like to schedule
a View in April or May. The Viewers prefer dates on either Tuesdays or Thursdays, preferably
during the morning.
Please mark dates on the enclosed calendars that you would not be available for the View
and return it to my office via mail or fax.
As always, we are seeking to discharge our duties in a timely fashion, so be prepared for a
Hearing within a short period of time after the View. Thank you for your cooperation.
Yours truly,
DUNCAN & HARTMAN, P.C.
William A. Duncan, Esq.
WAD/jda
Enclosure
CC: James Sheya
Fred Hefelfinger
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William A. Duncan
Susan I Hartman
(717) 249-7780
FAX (717) 249-7800
dhdlaw@planetcable.net
March 29, 2007
Duncan & Hartman, P.C.
Attorneys at Law
One Irvine Row
Carlisle, Pennsylvania 17013
Larry C. Heim, Esq.
KATHERMAN, HEIM & PERRY
345 East Market Street
York, PA 17403
Dear Counsel:
Donald J. Smith, Esq.
Assistant Counsel, Right of Way Section
Commonwealth of PA - Department of
Transportation
P.O. Box 8212
Harrisburg, PA 17015-8212
RE: Carl E. Dallmeyer and Kelly J. Dallmeyer v.
Commonwealth of Pennsylvania,
Department of Transportation
No. 00-2824 (Cumberland County)
Please see the enclosed Notice of View regarding the above captioned matter. We have
scheduled the View for Thursday, May 17, 2007 at 9:30 A.M.
Please confirm your attendance with my office.
We note that the appointment of the Board of View occurred some time ago and we
would like to move forward to resolve this matter. Thank you for your cooperation.
Yours truly,
DUNCAN & HARTMAN, P.C.
&119&
William A. Duncan, Esq.
WAD/jda
Enclosure
CC: James Sheya
Fred Hefelfinger
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY
THE COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION, OF RIGHT OF
WAY FOR S.R. 0015, SECTION A 12
A LIMITED ACCESS HIGHWAY IN
THE TOWNSHIP OF UPPER ALLEN
: CIVIL ACTION - LAW
: NO. 00-2824 CIVIL TERM
CARL E. DALLMEYER and
KELLY J. DALLMEYER,
Plaintiffs
V.
COMMONWEALTH OF EMINENT DOMAIN PROCEEDINGS
PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Defendant
NOTICE OF VIEW
TO:
Larry C. Heim, Esq.
KATHERMAN, HEIM & PERRY
345 East Market Street
York, PA 17403
Donald J. Smith, Esq.
Assistant Counsel, Right of Way Section
Commonwealth of PA - Department of
Transportation
P.O. Box 8212
Harrisburg, PA 17015-8212
R. Fred Hefelfinger
247 West Baltimore Street
Carlisle, PA 17013
William A. Duncan, Esq.
1 Irvine Row
Carlisle, PA 17013
James Sheya
433 Mooreland Avenue
Carlisle, PA 17013
Prothonotary's Office
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
NOTICE IS HEREBY GIVEN that an Order of the Court of Common Pleas of Cumberland
County has been issued to William A. Duncan, Esquire, James Sheya and Fred Hefelfinger, directing
them to determine a just compensation for the condemnation of said premises. The Viewers will
meet at the premises on May 17, 2007, at 9:30 A.M. for the performance of their duties under said
Order. All parties interested may attend at said time and place to accompany the said Viewers and
present their objections.
Date: 2007
lk?k4 ?1?
William A. Duncan, Esquire
Chairman, Board of View
WAD/j da
William A. Duncan
Susan J. Hartman
(717) 249-7780
FAX (717) 249-7800
dhdlaw@planetcable .net
June 8, 2007
Duncan & Hartman, P.C.
Attorneys at Law
One Irvine Row
Carlisle, Pennsylvania 17013
Lary C. Heim, Esq.
KATHERMAN, HEIM & PERRY
345 East Market Street
York, PA 17403
Dear Counsel:
Donald J. Smith, Esq.
Assistant Counsel, Right of Way Section
Commonwealth of PA - Department of
Transportation
P.O. Box 8212
Harrisburg, PA 17015-8212
RE: Carl E. Dallmeyer and Kelly J. Dallmeyer v.
Commonwealth of Pennsylvania,
Department of Transportation
No. 00-2824 (Cumberland County)
Please see the enclosed Notice of Hearing regarding the above captioned matter. We
have scheduled the Hearing for Tuesday, June 26, 2007 at 9:30 A.M. in the Conference Room at
my office at 1 Irvine Row, Carlisle, PA
Please stipulate that you waive any Notice requirements as to the Date and Notice to any
property owners of the Board of View. Such waivers should be reduced to written form and
forwarded to my office prior to the View.
Please confirm your attendance with my office.
Yours truly,
DUNCAN & HARTMAN, P.C.
William A. Duncan, Esq.
WAD/jda
Enclosure
CC: James Sheya
Fred Hefelfmger
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY
THE COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION, OF RIGHT OF
WAY FOR S.R. 0015, SECTION A 12
A LIMITED ACCESS HIGHWAY IN
THE TOWNSHIP OF UPPER ALLEN
: CIVIL ACTION - LAW
: NO. 00-2824 CIVIL TERM
CARL E. DALLMEYER and
KELLY J. DALLMEYER,
Plaintiffs
V.
COMMONWEALTH OF EMINENT DOMAIN PROCEEDINGS
PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Defendant
NOTICE OFHFARING
TO:
Larry C. Heim, Esq.
KATHERMAN, HEIM & PERRY
345 East Market Street
York, PA 17403
Donald J. Smith, Esq.
Assistant Counsel, Right of Way Section
Commonwealth of PA - Department of
Transportation
P.O. Box 8212
Harrisburg, PA 17015-8212
R. Fred Hefelfinger
247 West Baltimore Street
Carlisle, PA 17013
William A. Duncan, Esq.
1 Irvine Row
Carlisle, PA 17013
James Sheya
433 Mooreland Avenue
Carlisle, PA 17013
Prothonotary's Office
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
NOTICE IS HEREBY GIVEN that an Order of the Court of Common Pleas of
Cumberland County has been issued to William A. Duncan, Esquire, James Sheya and Fred
Hefelfinger, directing them to determine a just compensation for the condemnation of said
premises. The Viewers will meet in the Conference Room at Duncan & Hartman, P.C., 1 Irvine
Row, Carlisle, Pennsylvania, on Tuesday, June 26, 2007 at 9:30 A.M, for the performance of
their duties under said Order. All parties interested may attend at said time and place to
accompany the said Viewers and present their objections.
Date: A?® 2007
By:
William A. Duncan, Esquire
Chairman, Board of View
WAD/jda
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY : CIVIL ACTION - LAW
THE COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION, OF RIGHT OF:
WAY FOR S.R. 0015, SECTION A 12
A LIMITED ACCESS HIGHWAY IN
THE TOWNSHIP OF UPPER ALLEN
NO. 00-2824 CIVIL TERM
CARL E. DALLMEYER and
KELLY J. DALLMEYER,
Plaintiffs
V.
'COMMONWEALTH OF EMINENT DOMAIN PROCEEDINGS
PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION:
Defendant
PRAECIPE FOR FILING REPORT OF VIEWERS
TO THE PROTHONOTARY:
Please accept this Praecipe for Filing Report of Viewers with new filing date of
September 2, 2008 to replace the filing dated July 31, 2008.
Date: v Signature:
Print Name: William A. Duncan, Esq.
Address: 1 Irvine Row
Carlisle, PA 17013
Telephone: 717-249-7780
Supreme Court ID No. 22080
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY : CIVIL ACTION - LAW
THE COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION, OF RIGHT OF
WAY FOR S.R. 0015, SECTION A 12
A LIMITED ACCESS HIGHWAY IN
THE TOWNSHIP OF UPPER ALLEN
CARL E. DALLMEYER and
KELLY J. DALLMEYER,
Plaintiffs
V.
NO. 00-2824 CIVIL TERM
COMMONWEALTH OF EMINENT DOMAIN PROCEEDINGS
PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION:
Defendant
NOTICE OF FILING OF REPORT OF VIEWERS
Larry C. Heim, Esq.
KATHERMAN, HEIM &
PERRY
345 East Market Street
York, PA 17403
Donald J. Smith, Esq.
Assistant Counsel, Right of
Way Section
Commonwealth of PA -
Department of Transportation
P.O. Box 8212
Harrisburg, PA 17015-8212
Mr. R. Fred Hefelfmger
4 Todd Circle, Apt. D.
Carlisle, PA 17013
Mr. James P. Sheya
433 Mooreland Avenue
Carlisle, PA 17013
William A. Duncan, Esq.
1 Irvine Row
Carlisle, PA 17013
Enclosed herein please find report of the Board of View dated
2008, concerning the premises owned by Plaintiffs located in Upper Allen Towns 'p. The report
shall be filed in the Office of the Prothonotary of the Court of Common Pleas for Cumberland
County on September 2, 2008. The report shall become final unless an appeal therefrom is filed
within thirty (30) days from the date of the report is filed.
Board o V' )IU
CCQ
iam can, Chairman
Board of View
Board
James SMember
Board of Vie
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY : CIVIL ACTION - LAW
THE COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION, OF RIGHT OF:
WAY FOR S.R. 0015, SECTION A 12 .
A LIMITED ACCESS HIGHWAY IN .
THE TOWNSHIP OF UPPER ALLEN :
: NO. 00-2824 CIVIL TERM
CARL E. DALLMEYER and
KELLY J. DALLMEYER,
Plaintiffs
V.
COMMONWEALTH OF : EMINENT DOMAIN PROCEEDINGS
PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION:
Defendant
REPORT OF CHAIRMAN OF VIEWERS
TO THE HONORABLE. THE JUDGES OF SAID COURT:
The undersigned Chairman of Viewers respectively reports:
HISTORY OF THE CASE
1. On May 5, 2000, the Commonwealth of Pennsylvania, Department of
Transportation (hereinafter PennDOT) filed a Declaration of Taking at the above-referenced
docket number.
2. The Declaration of Taking effectuated a partial taking of property owned by Carl
E. Dallmeyer and Kelly J. Dallmeyer, located in Upper Allen Township, Cumberland County,
being operated as the Rolo Court Mobile Park (hereinafter Subject Property).
3. The effective before area of the subject property was 13.86 acres; the after area is
12.943 acres; the right of way taken by PennDOT consists of 0.917 acres and a Temporary
Construction Easement area in the amount of 0.245 acres.
4. A Notice to Proceed was given to the Department's Contractor on September 5,
2000, consequently, any delay damages to be awarded would accrue from this date.
5. On or about March 3, 2005, the Dallmeyers, through counsel, filed a Petition for
the Appointment of a Board of Viewers pursuant to 26 P. S. §1-502(a). See Exhibit "A" attached
6. By Order of Court of March 19, 2005, the Court appointed William A. Duncan,
Esquire, Chairman, Fred R. Hefelfinger and James Sheya as a Board of Viewers to assess
damages in the condemnation.
7. On February 8, 2007, a Notice of View was provided to counsel and members of
the Board of View scheduling a site view of the subject property for March 20, 2007. See Exhibit
"B" attached
8. By letter of March 19, 2007, the Board of Viewers Chairman advised that the
view scheduled for March 20, 2007 was postponed. See Exhibit "C" attached
9. On March 29, 2007, counsel and members of the Board were provided with a
Notice of View scheduling the Site View of the subject property for May 17, 2007. See Exhibit
"D" attached
10. The Site View occurred on May 17, 2007, at which time counsel for PennDOT
provided counsel for the Dallmeyers and the Board of Viewers with copies of the Board of
Viewers Plan. Potential dates for the Hearing in the within matter were also discussed at the
conclusion of the Site View.
11. Both parties desired that a Hearing be scheduled at the Board's earliest
convenience and counsel for both parties waived formal hearing notice requirements.
12. On June 8, 2007, the Board of Viewers scheduled a Hearing in the above matter
for June 26, 2007 in the Conference Room of the law firm of Duncan & Hartman, P.C., One
Irvine Row, Carlisle, Pennsylvania. See Exhibit "E" attached
13. The Board of Viewers, the parties, their witnesses and counsel were present on the
stated date and time for the taking of testimony in the above matter.
14. PennDOT arranged for a court reported to be present to transcribe the notes of
testimony.
15. During the course of the Hearing, the Chairman indicated that the Board of
Viewers may wish to undertake another view of the subject property either on their own or with
counsel present. Both counsel stipulated to a Waiver of Notice for any possible second view
which may be conducted by the Board of Viewers. Notes of Testimony (hereinafter N.T.) 20-21.
16. Carl E. Dallmeyer testified on behalf of the condemnees. N.T. 14-19.
17. Mr. Dallmeyer testified that he, along with his sister, Kelly Rodgers, was an
owner of the Rolo Court Mobile Home Park and had been an owner since August of 1997 when
they acquired the property from their father who had purchased it some fifteen years prior to
August of 1997, N.T. 14. Mr. Dallmeyer described the location and size of the subject property
and the partial taking by PennDOT, all of which were consistent with the Viewers Plan. N.T. 15-
16. Mr. Dallmeyer further testified that eight (8) of the total one hundred twenty eight (128)
mobile home pads and a mailbox pavilion were taken as a result of the partial taking. Mr.
Dallmeyer also testified that the subject property was completely visible to traffic traveling in
both directions on Route 15 prior to the highway project which involved the placement of sound
barriers. N.T. 15-16. Mr. Dallmeyer admitted on cross-examination that prior to the date of the
take in May 2000 he had not filed any subdivision plans or any plans with the township to
develop the subject property other than as a mobile home park. N.T. 17.
18. In response to a question from the Board of Viewers, Mr. Dallmeyer testified that
the moving of the mail pavilion had no effect on the subject property. N.T. 18-19.
19. Elliott W. Weinstein, a qualified valuation expert, testified on behalf of the
condemnees.
20. PennDOT counsel stipulated to Mr. Weinstein's qualifications. N.T. 22.
21. Mr. Weinstein testified from an appraisal report dated June 4, 2007 which was
marked as Exhibit 0-1 and admitted into the record. N.T. 72.
22. Mr. Weinstein had actually prepared two (2) appraisal reports relative to the
subject property, and earlier one dated August 22, 2006, which the Board of Viewers requested
be provided to them following the Hearing. N.T. 33-39.
23. Mr. Weinstein testified that the August 22, 2006 appraisal report had been
prepared by another appraiser in his company who is no longer with the firm, although Mr.
Weinstein acted in a review appraiser capacity, signed the appraisal report and concurred with the
opinions expressed therein. N.T. 39-42.
24. As to the zoning of the subject property in 2000, Mr. Weistein testified that the
best he could determine was that is was half (%2) zoned commercial convenience and half (%2)
zoned suburban residential. N.T. 45.
25. Since the precise zoning of the subject property on the date of the take, May 5,
2000, was unclear, the Board of Viewers permitted the condemnee to submit a Supplemental
Exhibit following the Hearing from Upper Allen Township which was provided by condemnee's
counsel under cover letter of July 12, 2007.
26. The letter from Upper Allen Township Solicitor William E. Miller, Jr., dated July
11, 2007, indicates, in pertinent part, as follows:
This confirms my previous telephone advice to you that in
May 2002 the zoning designation for real property in Upper
Allen Township, Cumberland County, Pennsylvania, within
which is situate the Rolo Court Mobile Home Park, was
Convenience Commercial ("CC")(emphasis added).
Obviously, this additional exhibit does not verify the zoning of the property in May 2000, the
date of the take.
27. Mr. Weinstein concluded that the highest and best use of the subject property
before the taking and as unaffected by the taking was a high quality commercial site. N.T. 26;
Exhibit 0-1 pp. 34-35.
28. Although Mr. Weinstein utilized 2006 data, six (6) years after the date of the
take, taken from the condemnee's 2006 Revenue and Expenses Statement, in preparing his
income approach, and failed to make any adjustments back to the year 2000, Mr. Weinstein did
not believe this was a mistake. N.T. 62-63; Exhibit O-lpp. 44-46. Mr. Weinstein was instructed
by the Board of Viewers to supplement his appraisal report utilizing year 2000 income and
expense information and submitted an addendum to the appraisal report on June 29, 2007,
resulting in a reduction of damages to Seven Hundred Thousand Dollars ($700,000.00).
29. Jay D. Matthews, a qualified valuation expert, testified on behalf of PennDOT,
following condemnees' counsel's stipulation as to his qualifications N.T. 73-87.
30. Mr. Matthews testified that he originally appraised the subject property in
September of 1999 and later updated his appraisal to May 5, 2000, the date of the taking. N.T.
74.
31. Mr. Matthews testified that he had met with Mr. Dallmeyer, discussed the use of
the property with him and obtained financial statements going back several years from Mr.
Dallmeyer. N.T. 75-76.
32. Because of the confusing nature of the zoning of the subject property, Mr.
Matthews spoke with the Zoning Officer for Upper Allen Township and purchased a copy of the
Zoning Ordinance and the Zoning Map. N.T. 77-80. Mr. Matthews' understanding of the zoning
of the subject property, following his meetings with the Zoning Officer and reading of the Zoning
Ordinance and accompanying map, was that there was no specific amount of the subject property
that was determined to be Convenience Commercial or Suburban Residential but that based upon
the Zoning Map, more of the subject property was located in the Suburban Residential Zone
rather than the Commercial Convenience Zone. N.T. 80.
33. Mr. Matthews testified to total damages in the amount of One Hundred Forty-One
Thousand Seven Hundred Dollars ($142,700.00). N.T. 82-83; Exhibit C-5.
34. Mr. Matthews reduced expenses by the same pro rata formula as income was
reduced.
DISCUSSION
PennDOT is liable for payment of just compensation as to the condemnees for the taking,
injury or destruction of the subject property, as determined as set forth in the Eminent Domain
Code, 26 P.S. §1-101 et. Seq. Just compensation shall consist of the difference between the fair
market value of the condemnee's entire property interest immediately before the condemnation
and as unaffected thereby and the fair market value of their property interest remaining
immediately after such condemnation and as affected thereby. See Section 602(a) of the Eminent
Domain Code 26 P. S. §1-602 (relating to measure of damages).
PennDOT is not responsible for any perceived damages alleged by the condemnees as a
result of the erection of the sound barriers which eliminate the view to the subject property from
the public highway. See In RE: Condemnation by the Delaware River Port Authority, 667 A.2nd
766 (Pa.Cmwlth. 1995), appeal denied, Pa. , 684 A.2d 120 (1996).
In Delaware River Port Authority, a billboard owner filed a Petition for Appointment of
Board of View after the Port Authority erected a sound barrier that obstructed the view of their
billboard. The question for the Court was whether an abutting property owner may recover
condemnation damages when erection of sound barriers of a highway obstructs the view from the
highway of a billboard erected on the property. The Court concluded that the abutting property
owner did not have a right to have the billboard sign viewed by traffic on the highway and was
not entitled to compensation for the taking for the erection of sound barriers that obstructed the
view of the billboard.
In reaching its determination, the Commonwealth Court looked to analogous Supreme
Court cases to explain the rights of abutting property owners and the reasons their damages are
limited. In Wolf v. Commonwealth of Pennsylvania, Department of Highways, 422 Pa. 34, 220
A.2d 868 (1966), the Supreme Court held before it abutting property owners who operate a gas
station and a motel. The owners filed a claim for damages when an improvement in a highway
made access to their property more difficult. The Court said:
In this are of the law certain principles are well settled ... [I]n the
regulation of traffic and in the interest of public safety, the
Commonwealth, acting within the scope of its police powers may
make reasonable rules and regulations which may dilute or diminish
the rights of abutting property owners without liability to respond in
damages. The theory is that, in such field, the interests of the abutting
property owner must ve subordinated to the interest of the public at
large.
Wolf at 39-40, 220 A.2d at 871. The Court further indicated,
One commentator has aptly stated: "...what [the property owner] is
losing, in fact, is the benefit-entirely unearned by him to his land
of the commercially exploitable proximity of heavy traffic. Since he
has no right to this benefit and has done nothing to create it, he should
have little cause to complain at losing it" Covey, "Frontage Roads: To
Compensate of Not to Compensate:, 56 N.W.U.L.Rev. 587, 599
(1961).
Id at 46, 220 A.2d.at 874.
The Supreme Court reaffirmed Wolf in Hession Condemnation Case, 430 Pa. 273, 242A.2d
432 (1968), cert. denied, 393 U.S.1049, 89S.Ct. 685, 21 L.Ed.2d 693 (1969). In Hession, the Court
held that the fact that an elevated highway transformed what was a heavily traveled highway into a
street with only local traffic did not entitle the owner of a restaurant to condemnation damages. The
Court based its conclusion on holdings in previous cases that an abutting property owner on a public
highway has only the right to ingress and egress. The Court quoted the following statements with
approval:
Nor does the right of ingress of egress to or from one's property
include any right in and to the existing public traffic on the highway,
or any right to have such traffic pass by one's abutting property. The
reason is that all traffic on public highways is controlled by the police
power of the state, and what the police power may give an abutting
property owner in the way of traffic on the highway, it may take
away, and by any such diversion of traffic, the State and any of its
agencies are not liable for any decrease of property values by reason
of such diversion of traffic, because such damages are "damnum
absque injuria" or damage without legal injury.
Id, at 279-280, 242 A.2d at 435 (citation omitted).
FINDING OF BOARD
1. Pursuant to In Re: Condemnation by the Delaware River Port Authority, 667, A.2d 766
(Pa.Cmwlth 1995), and cases cited therein, the Board of Viewers concludes that condemnees are not
entitled to damages for any loss of visibility of the subject property due to the installation of sound
barriers as a result of the within project, such damages being "damnum absque injuria" or damage
without legal injury, and therefore noncompensable.
CONCLUSIONS
1. The Board of View disagrees with both appraisals and finds that condemnees expenses do
not decrease over pro rata with loss of pads as calculated by condemner's experts.
2. The Board of View also finds that the reduced development potential of the smaller site is
an item of damages not fully addressed by Commonwealth's appraisal or experts.
3. Therefore, the Board of Viewers concludes that damages shall be awarded to the
condemnees in the amount of Two Hundred Seventy Thousand Dollars ($ 270,000.00) with a
credit to be given to PennDOT for any amounts of just compensation previously paid to
condemnees either directly or by deposit with the Prothonotary of Cumberland County.
Respectfully submitted,
v
Date:
William A. Duncan, Chairman
The Board of View having performed duties related to its appointment prior to said decision. An
invoice and Bill of Cost is hereby submitted to the Court.
William A. Duncan, Chairman 3 days @ 375.00 $ 1,125.00
2 views @ $375.00 750.00
1 hearing @ $375.00 375.00
1 deliberation @ $375.00 375.00
Postage Certified (12 cert. x $4.64 94.43
= 55.68 + 4 cert. x $5.21 = 20.84)
Misc. Post - 20 x .42 = 8.40 + 29.96
cert. - 4 x 4.64 = 18.56)
Mileage 80 x.50 cents per mile 40.00
Subtotal $ 2,789.39
Fred Hefelfinger, Viewer 2 days @ 250.00 $ 500.00
1 hearing @ $250.00 250.00
1 deliberation @ $250.00 250.00
Subtotal $ 1,000.00
James Sheya, Viewer 2 days @ $ 250.00 $ 500.00
1 hearing @ $250.00 250.00
1 deliberation @ $250.00 250.00
Mileage 80 x .50 cents per mile 40.00
$ 1,040.00
TOTAL COST F WERS $ 4,829.39
Date: P-//??/ Pf
A. Duncan, Chairman
Date: 01 / Aq?
!FrHefe
f ?J Date: 0?./ 11p
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: Condemnation by the
COMMONWEALTH OF
PENNSYLVANIA, Department of
Transportation, of the Right-of-Way
for State Route 0015, Section A12, a
Limited Access Highway in the
Township of Upper Allen
Civil Action - LAW
MAR 0 4 2005 A"\
CARL E. DALLMEYER and
KELLY J. DALLMEYER
Plaintiff
vs.
COMMONWEALTH OF
PENNSYLVANIA, PennDOT
Defendant
NO. 00-2824
EMINENT DOMAIN PROCEEDING
IN REM
ORDER
AND NOW, this Aay of (M:21 (I , 2005, upon consideration of
the petition of Carl E. Dallmeyer and Kelly J. Dallmeyer, the Court appoints:
c- e- U7
Z
as a board of viewers to assess damages in the condemnation and further orders that the
board of viewers perform its duties in accordance with the law and Acts of Assembly and
grants leave to the board of viewers to issue an interlocutory report or interlocutory
reports covering such properties or claims as the board of viewers determines
appropriate.
By the Court: )
,- J ..
"All
L. C. Heim
KATHERMAN, HEIM & PERRY
Attorney I.D. No. 23155
345 East Market Street
York, PA 17403
(717) 854-5124
Attorneys for Petitioner
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: Condemnation by the
COMMONWEALTH OF
PENNSYLVANIA, Department of.
Transportation, of the Right-of-Way
for State Route 0015, Section A12, a
Limited Access Highway in the
Township of Upper Allen
CARL E. DALLMEYER and
KELLY J. DALLMEYER
Plaintiff
VS.
Civil Action - LAW
NO. 00-2824
EMINENT DOMAIN PROCEEDING
IN REM
COMMONWEALTH OF
PENNSYLVANIA, PennDOT
Defendant
PETITION FOR THE APPOINTMENT OF BOARD OF
VIEWERS PURSUANT TO 26 P. S. §1-502(a)
The petition of Carl E. Dallmeyer and Kelly J. Dallmeyer ("condemnees")
by their undersigned counsel, represents:
1. On May 5, 2000, condemnees were the owner in fee simple of property
located at in Upper Allen Township, Cumberland County, Pennsylvania.
2. On May 5, 2000, a declaration of taking was filed of record by the
Commonwealth of Pennsylvania, Department of Transportation ("condemnor"),
including the property herein. A copy of the declaration of taking is attached as
Exhibit "A." No preliminary objections to the declaration of taking have been
filed which remain undisposed.
3. The subject property is more fully described in Deed Book 163, Page
659, and is identified as Parcel No. 37 in the declaration of taking filed in this
matter as follows.
4. The names and addresses of all other condemnees and mortgagees known
to condemnee to have an interest in the subject property are as follows:
a. M& T Bank, 21 East Market Street, York, Pennsylvania, having a
first mortgage against the property.
5. By virtue of the declaration of taking condemnor condemned the property
taking a fee simple or absolute title in a portion of the property.
6. Condemnees and condemnor have been unable to agree upon the just
compensation for the property.
WHEREFORE, condemnee requests that this Court appoint three viewers to
assess the damages to which condemnee is entitled by reason of the condemnation.
KATHERMAN, HEIM
& PERRY
byAC.Hejim-
Attorney for Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF RIGHT OF WAY FOR STATE
ROUTE 0015, SECTION A 12,
A LIMITED ACCESS HICHW AY IN THE TOWNSHIP OF UPPER
ALLEN
DECLARATION OF TAKING
Stuart A. Liner
Assistant Counsel
ID No. 15290
Commonwealth of Pennsylvania
Department of Transportation
Office of Chief Counsel
P.O. Box 8212
Harrisburg, PA 17105-8212
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION, OF THE
RIGHT-OF-WAY FOR STATE
ROUTE 0015, SECTION A12,-A'
LIMMD ACCESS HIGHWAY IN
THE TOWNSHIP OF UPPER ALLEN
NO.-- Qd • oZ ?a 4id
ri
EMINENT DOMAIN PROCEEIWGo
IN REM
DECLARATION OF TAKING
? .J
TO THE HONORABLE, THE JUDGES OF_M- E SAID COURT:
This Declaration of Taking, based on the provisions of Article IV, Section 402, of
the Eminent Domain Code, Act of June 22, 1964,P. L. 84; 26 P. S. 1-402, as amended,
respectfully represents that:
1. The Condemnor is the Commonwealth of Pennsylvania, Department of
Transportation, acting through the Secretary of Transportation.
?. -he address of the Condemnor is:
Commonwealth of Pennsylvania
Department of Transportation
Office of Chief Counsel
P.O. Box 8212 -
Harrisburg, PA 17105-8212
3. The Department of Transportation is authorized by the provisions of
Section 2003(e) of the Administrative Code of 1929, P. L. 177, 71 P. S. 513(e), as
amended, to acquire by gift, purchase, condemnation or otherwise, land in fee simple or
such other estate or interest as it shall determine, in the name of the Commonwealth for
all transportation purposes.
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4. The within condemnation has been authorized by a plan signed by the
Secretary of Transportation on February 18, 2000, . entitled "Drawings Establishing -and
Re-establishing a Limited Access Highway Authorizing Acquisition of Right-of-Way for
State Route 0015, Section A12 R/W in Cumberland County, and State Route 2004, " a
copy of which plan was filed in the County Recorder's Office in Cabinet 3, Drawer 1 at
Page 130 on March 10, 2000.
5. The purpose of the within condemnation is to acquire property for
transportation purposes.
6. A Schedule of Property Condemned identifying and specifying the
location of the property hereby condemned is attached hereto and made a part hereof.
7. Plans showing the property hereby condemned may be inspected in the
Recorder's Office of the aforesaid County at the places indicated on the attached
Schedule of Property Condemned or, if not shown thereon, on the day of the filing of this
document being lodged for record or filed in said Recorder's Offices, where they may be
inspected.
8. The nature of the title hereby condemned is fee simple and a temporary
constuction easement.
9. In the event there are recoverable minerals (including gas and oil) within
the areas, if any, hereby condemned in fee simple, the mineral rights (including rights to
gas and oil) in those areas are hereby excepted and reserved fr om this condemnation,
provided however, that the right of support of the areas condemned is included within the
scope of this condemnation, and no access from the surface of such areas for removal
purposes will be allowed without permission from the Cornmonwealth.
M
77
- .. -. .... . _ .xBA Yom.
COMMONWEALTH OF PENNSYLVANIA Page 1
RW437 (10/") DEPARTMENT 1OF TRANSPORTATION
SCHEDULE OF PROPERTY CONDEMNED
(Declaration of Taking)
REMIS Pro'. No. 080039 TYPE OF DESCRIPTION few
Coun Cumberland [RR- Deed Description
Fed. Pro'. No. ! 05-0131.-115 Plan lodged for recording With Notice
Municipality I Upper Allen Township of Condemnation
Route-Sec. 0015-A12 - Plan now recorded in Recorder's. Office
Parcel
No.
37
Claim
Number
210003300(
Name; MailingAddress, Property
Interest of Condemnees, and
Location of Condemned Property
Carl E. Dallmeyer, A Married Man and
Kelly J. Dallmeyer. A Single Woman, as
Joint Tenants with the right ofsurvivorshii
4775 N. Sherman Street Ext.
Mt. Wolf, PA 17347 -
Attached
Exhibit
Number 'Type of
Plan (if any)
Recorded in
Cabinet 3, Drawer I
Page 130
Sheets #57, 26, 28 & 31
40
46
57
21000430000
21000460000
21000490000
Location of Property
Deed Book 163, Page 659
William F. Rothman. Charles F. Schubert
and Samuel L. Reed, Anna Bianco,
Incorporated, William F. Rothman,
President .
T D/B/A Rothman, Schuberit and Reed
Realtors
308 East Penn Drive
Enola. PA 17025
Location of Property :
Deed Book Q-33, Page 1038
Country Square Partnership, A
Pennsylvania General Partnership
Ashcombe Products Company; General
Partner -
John S. Thornton, CEO
19 North Baltimore Street
Dillsburg, PA 17019
Location of Property
Deed Book 204; Page 1 146
Alice R. Mountz, Single
899 Emily Drive
Mechanicsburg, PA 17055
Location of Property
Deed Book 134, Page 259
R
R
R
R
Cabinet 3, Drawer I
Page 130
Sheets #21, 28, & 31
Cabinet 3, Drawer I
Page 130
Sheets 4.22 & 3 I .-
Cabinet 3, Drawer I
Page 130
Sheets # 22 & 30
I hereby verify that the statements in this PETITION are true and correct to the
best of my knowledge information and belief. I understand that false statements
herein are made subject to the penalties of 18 PA.C.S. Sec. 4904, relating to unworn
falsification to authorities.
DATE: March 2, 2005
CARL E. DALLMEY ._..
Et? ME COPY
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY
THE COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION, OF RIGHT OF
WAY FOR S.R. 0015, SECTION A 12
A LIMITED ACCESS HIGHWAY IN
THE TOWNSHIP OF UPPER ALLEN
: CIVIL ACTION - LAW
CARL E. DALLMEYER and
KELLY J. DALLMEYER,
Plaintiffs
: NO. 00-2824 CIVIL TERM
V.
COMMONWEALTH OF EMINENT DOMAIN PROCEEDINGS
PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Defendant
NOTICE OF VIEW
TO:
Larry C. Heim, Esq.
KATHERMAN, HEIM & PERRY
345 East Market Street
York, PA 17403
Donald J. Smith, Esq.
Assistant Counsel, Right of Way Section
Commonwealth of PA - Department of
Transportation
P.O. Box 8212
Harrisburg, PA 17015-8212
R. Fred Hefelfinger
247 West Baltimore Street
Carlisle, PA 17013
William A. Duncan, Esq.
1 Irvine Row
Carlisle, PA 17013
James Sheya
433 Mooreland Avenue
Carlisle, PA 17013
Prothonotary's Office
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
NOTICE IS HEREBY GIVEN that an Order of the Court of Common Pleas of Cumberland
County has been issued to William A. Duncan, Esquire, James Sheya and Fred Hefelfmger, directing
them to determine a just compensation for the condemnation of said premises. The Viewers will
meet at the premises on March 20, 2007, at 9:30 A.M. for the performance of their duties under said
Order. All parties interested may attend at said time and place to accompany the said Viewers and
present their objections.
Date: O .2007
By:
A ' IYA4 ?-
William A. Duncan, Esquire
Chairman, Board of View
WAD/jda
William A. Duncan
Susan J. Hartman
Duncan & Hartman, P.C.
Attorneys at Law
One Irvine Row
Carlisle, Pennsylvania 17013
March 19, 2007
Larry C. Heim, Esq.
KATHERMAN, HEIM & PERRY
345 East Market Street
York, PA 17403
Dear Counsel:
(717) 249-7780
FAX (717) 249-7800
dhdlaw@planetcable.net
Donald J. Smith, Esq.
Assistant Counsel, Right of Way Section
Commonwealth of PA - Department of
Transportation
P.O. Box 8212
Harrisburg, PA 17015-8212
RE: Carl E. Dallmeyer and Kelly J. Dallmeyer v.
Commonwealth of Pennsylvania,
Department of Transportation
No. 00-2824 (Cumberland County)
The View scheduled for March 20, 2007 has been postponed. We would like to schedule
a View in April or May. The Viewers prefer dates on either Tuesdays or Thursdays, preferably
during the morning.
Please mark dates on the enclosed calendars that you would not be available for the View
and return it to my office via mail or fax.
As always, we are seeking to discharge our duties in a timely fashion, so be prepared for a
Hearing within a short period of time after the View. Thank you for your cooperation.
Yours truly,
DUNCAN & HARTMAN, P.C.
William A. Duncan, Esq.
WAD/j da
Enclosure
CC: James Sheya
Fred Hefelfinger
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Duncan & Hartman, P.C.
Attorneys at Law
One Irvine Row
Carlisle, Pennsylvania 17013
William A. Duncan
Susan J. Hartman
(717) 249-7780
FAX (717) 249-7800
dhdlaw@planetcable.net
March 29, 2007
Larry C. Heim, Esq.
KATHERMAN, HEIM & PERRY
345 East Market Street
York, PA 17403
Donald J. Smith, Esq.
Assistant Counsel, Right of Way Section
Commonwealth of PA - Department of
Transportation
P.O. Box 8212
Harrisburg, PA 17015-8212
RE: Carl E. Dallmeyer and Kelly J. Dallmeyer v.
Commonwealth of Pennsylvania,
Department of Transportation
No. 00-2824 (Cumberland County)
Dear Counsel:
Please see the enclosed Notice of View regarding the above captioned matter. We have
scheduled the View for Thursday, May 17, 2007 at 9:30 A.M.
Please confirm your attendance with my office.
We note that the appointment of the Board of View occurred some time ago and we
would like to move forward to resolve this matter. Thank you for your cooperation.
WAD/jda
Enclosure
CC: James Sheya
Fred Hefelfinger
Yours truly,
DUNCAN & HARTMAN, P.C.
Y/?
William A. Duncan, Esq.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY
THE COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION, OF RIGHT OF
WAY FOR S.R. 0015, SECTION A 12
A LIMITED ACCESS HIGHWAY IN
THE TOWNSHIP OF UPPER ALLEN
: CIVIL ACTION - LAW
CARL E. DALLMEYER and
KELLY J. DALLMEYER,
Plaintiffs
V.
: NO. 00-2824 CIVIL TERM
COMMONWEALTH OF EMINENT DOMAIN PROCEEDINGS
PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Defendant
NOTICE OF VIEW
TO:
Larry C. Heim, Esq.
KATHERMAN, HEIM & PERRY
345 East Market Street
York, PA 17403
Donald J. Smith, Esq.
Assistant Counsel, Right of Way Section
Commonwealth of PA - Department of
Transportation
P.O. BOX 8212
Harrisburg, PA 17015-8212
R. Fred Hefelfinger
247 West Baltimore Street
Carlisle, PA 17013
William A. Duncan, Esq.
1 Irvine Row
Carlisle, PA 17013
James Sheya
433 Mooreland Avenue
Carlisle, PA 17013
Prothonotary's Office
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
NOTICE IS HEREBY GIVEN that an Order of the Court of Common Pleas of Cumberland
County has been issued to William A. Duncan, Esquire, James Sheya and Fred Hefelfinger, directing
them to determine a just compensation for the condemnation of said premises. The Viewers will
meet at the premises on May 17, 2007, at 9:30 A.M. for the performance of their duties under said
Order. All parties interested may attend at said time and place to accompany the said Viewers and
present their objections.
Date: .2007
By:
William A. Duncan, Esquire
Chairman, Board of View
WAD/j da
William A. Duncan
Susan J. Hartman
Larry C. Heim, Esq.
KATHERMAN, HEIM & PERRY
345 East Market Street
York, PA 17403
June 8, 2007
Dear Counsel:
Duncan & Hartman, P.C.
Attorneys at Law
One Irvine Row
Carlisle, Pennsylvania 17013
(717) 249-7780
FAX (717) 249-7800
dhdlaw@planetcable.net
Donald J. Smith, Esq.
Assistant Counsel, Right of Way Section
Commonwealth of PA - Department of
Transportation
P.O. Box 8212
Harrisburg, PA 17015-8212
RE: Carl E. Dallmeyer and Kelly J. Dallmeyer v.
Commonwealth of Pennsylvania,
Department of Transportation
No. 00-2824 (Cumberland County)
Please see the enclosed Notice of Hearing regarding the above captioned matter. We
have scheduled the Hearing for Tuesday, June 26, 2007 at 9:30 A.M. in the Conference Room at
my office at 1 Irvine Row, Carlisle, PA
Please stipulate that you waive any Notice requirements as to the Date and Notice to any
property owners of the Board of View. Such waivers should be reduced to written form and
forwarded to my office prior to the View.
Please confirm your attendance with my office.
Yours truly,
DUNCAN & HARTMAN, P.C.
William A. Duncan, Esq.
WAD/jda
Enclosure
CC: James Sheya
Fred Hefelfinger
ir???
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY
THE COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION, OF RIGHT OF
WAY FOR S.R. 0015, SECTION A 12
A LIMITED ACCESS HIGHWAY IN
THE TOWNSHIP OF UPPER ALLEN
: CIVIL ACTION - LAW
NO. 00-2824 CIVIL TERM
CARL E. DALLMEYER and
KELLY J. DALLMEYER,
Plaintiffs
V.
COMMONWEALTH OF EMINENT DOMAIN PROCEEDINGS
PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Defendant
NOTICE OF REARING
TO:
Larry C. Heim, Esq.
KATHERMAN, HEIM & PERRY
345 East Market Street
York, PA 17403
Donald J. Smith, Esq.
Assistant Counsel, Right of Way Section
Commonwealth of PA - Department of
Transportation
P.O. Box 8212
Harrisburg, PA 17015-8212
R. Fred Hefelfmger
247 West Baltimore Street
Carlisle, PA 17013
William A. Duncan, Esq.
1 Irvine Row
Carlisle, PA 17013
James Sheya
433 Mooreland Avenue
Carlisle, PA 17013
Prothonotary's Office
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
NOTICE IS HEREBY GIVEN that an Order of the Court of Common Pleas of
Cumberland County has been issued to William A. Duncan, Esquire, James Sheya and Fred
Hefelfinger, directing them to determine a just compensation for the condemnation of said
premises. The Viewers will meet in the Conference Room at Duncan & Hartman, P.C., 1 Irvine
Row, Carlisle, Pennsylvania, on Tuesday, June 26, 2007 at 9:30 A.M, for the performance of
their duties under said Order. All parties interested may attend at said time and place to
accompany the said Viewers and present their objections.
Date: 1 kzp--g 2007
01
By:
William A. Duncan, Esquire
Chairman, Board of View
WAD/jda
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY : CIVIL ACTION - LAW
THE COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION, OF RIGHT OF:
WAY FOR S.R. 0015, SECTION A 12 .
A LIMITED ACCESS HIGHWAY IN
THE TOWNSHIP OF UPPER ALLEN
CARL E. DALLMEYER and
KELLY J. DALLMEYER,
Plaintiffs
V.
: NO. 00-2824 CIVIL TERM ,
'COMMONWEALTH OF EMINENT DOMAIN PROCEEDINGS
PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION:
Defendant
PRAECIPE FOR FILING REPORT OF VIEWERS
TO THE PROTHONOTARY:
Please accept this Praecipe for Filing Report of Viewers with new filing date of
September 2, 2008 to replace the filing dated July 31, 2008.
Date: v Signature:
Print Name: William A. Duncan, Esq.
Address: 1 Irvine Row
Carlisle, PA 17013
Telephone: 717-249-7780
Supreme Court ID No. 22080
The Board of View having performed duties related to its appointment prior to said decision. An
invoice and Bill of Cost is hereby submitted to the Court.
William A. Duncan, Chairman 3 days @ 375.00 $ 1,125.00
2 views @ $375.00 750.00
1 hearing @ $375.00 375.00
1 deliberation @ $375.00 375.00
Postage Certified (12 cert. x $4.64 94.43
= 55.68 + 4 cert. x $5.21 = 20.84)
Misc. Post - 20 x .42 = 8.40 + 29.96
cert. - 4 x 4.64 =18.56)
Mileage 80 x.50 cents per mile 40.00
Subtotal $ 2,789.39
Fred Hefelfinger, Viewer 2 days @ 250.00 $ 500.00
1 hearing @ $250.00 250.00
1 deliberation @ $250.00 250.00
Subtotal $ 1,000.00
James Sheya, Viewer 2 days @ $ 250.00 $ 500.00
1 hearing @ $250.00 250.00
1 deliberation @ $250.00 250.00
Mileage 80 x .50 cents per mile 40.00
$ 1,040.00
TOTAL COST F IEWERS $ 4,829.39
Date: 0-/0 1 go
ill' A. Duncan, Chairman
Date: 0711 ItX?? ?A
Date: 041 t?U r J V r--°--}
Tames Shev Viewer
(411"
OL-
r ? !1?l¢1 D?
1:?,,?,d. ?}?
?"!"
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY : CIVIL ACTION - LAW
THE COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION, OF RIGHT OF
WAY FOR S.R. 0015, SECTION A 12 .
A LIMITED ACCESS HIGHWAY IN .
THE TOWNSHIP OF UPPER ALLEN
CARL E. DALLMEYER and
KELLY J. DALLMEYER,
Plaintiffs
V.
NO. 00-2824 CIVIL TERM
COMMONWEALTH OF EMINENT DOMAIN PROCEEDINGS
PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION:
Defendant
NOTICE OF FILING OF REPORT OF VIEWERS
Larry C. Heim, Esq.
KATHERMAN, HEIM &
PERRY
345 East Market Street
York, PA 17403
Mr. James P. Sheya
433 Mooreland Avenue
Carlisle, PA 17013
Donald J. Smith, Esq.
Assistant Counsel, Right of
Way Section
Commonwealth of PA -
Department of Transportation
P.O. Box 8212
Harrisburg, PA 17015-8212
William A. Duncan, Esq.
1 lrvine Row
Carlisle, PA 17013
Mr. R. Fred Hefelfmger
4 Todd Circle, Apt. D.
Carlisle, PA 17013
Enclosed herein please find report of the Board of View =p
2008, concerning the premises owned by Plaintiffs located in Ullen Towns 'p. The report
shall be filed in the Office of the Prothonotary of the Court of Common Pleas for Cumberland
County on September 2 , 2008. The report shall become final unless an appeal therefrom is filed
within thirty (30) days from the date of the report is filed.
Board o V'
CCU'
iam can, Chairman
Board of View
Board
James Sfiey? Member
Board of Vie
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
IN RE: CONDEMNATION BY : CIVIL ACTION - LAW
THE COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION, OF RIGHT OF:
WAY FOR S.R. 0015, SECTION A 12 .
A LIMITED ACCESS HIGHWAY IN .
THE TOWNSHIP OF UPPER ALLEN :
: NO. 00-2824 CIVIL TERM
CARL E. DALLMEYER and
KELLY J. DALLMEYER,
Plaintiffs
V.
COMMONWEALTH OF EMINENT DOMAIN PROCEEDINGS
PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION:
Defendant
REPORT OF CHAIRMAN OF VIEWERS
TO THE HONORABLE THE JUDGES OF SAID COURT:
The undersigned Chairman of Viewers respectively reports:
HISTORY OF THE CASE
1. On May 5, 2000, the Commonwealth of Pennsylvania, Department of
Transportation (hereinafter PennDOT) filed a Declaration of Taking at the above-referenced
docket number.
2. The Declaration of Taking effectuated a partial taking of property owned by Carl
E. Dallmeyer and Kelly J. Dallmeyer, located in Upper Allen Township, Cumberland County,
being operated as the Rolo Court Mobile Park (hereinafter Subject Property).
3. The effective before area of the subject property was 13.86 acres; the after area is
12.943 acres; the right of way taken by PennDOT consists of 0.917 acres and a Temporary
Construction Easement area in the amount of 0.245 acres.
4. A Notice to Proceed was given to the Department's Contractor on September 5,
2000, consequently, any delay damages to be awarded would accrue from this date.
5. On or about March 3, 2005, the Dallmeyers, through counsel, filed a Petition for
the Appointment of a Board of Viewers pursuant to 26 P.S. §1-502(a). See Exhibit "A" attached
6. By Order of Court of March 19, 2005, the Court appointed William A. Duncan,
L. C. Heim
KATHERMAN, HEIM & PERRY
Attorney I.D. No. 23155
345 East Market Street
York, PA 17403
(717) 854-5124
Attorneys for Plaintiffs
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: Condemnation by the
COMMONWEALTH OF
PENNSYLVANIA, Department of
Transportation, of the Right-of-Way
for State Route 0015, Section A 12, a
Limited Access Highway in the
Township of Upper Allen
CARL E. DALLMEYER and
KELLY J. DALLMEYER
Plaintiff
vs.
Civil Action - LAW
NO. 00-2824
EMINENT DOMAIN PROCEEDING
IN REM
COMMONWEALTH OF
PENNSYLVANIA, PennDOT
Defendant
PRAECIPE TO SATISFY
TO THE PROTHONOTARY:
Mark the docket in the above-referenced case SATISFIED.
Wt C. Heim,
torney for Plaintiffs
I. D. No. 23155
Date: Decembera9, 2008
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