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16.02
16.02 (Civ) ,JUST COMPENSATION
The propel' meusure of damages where property rights have been tuken under the
power of eminent domain is the differenee between the fail' market value of the
condemnee's entire property interest immediately before the condemnation and as
unaffected thereby and the fair market vulue of his property interest remaining
immediately after such condemnation and as affeeted thereby, and such other damages as
are provided by law in the Eminent Domain Code.
SUBCOMMITTEE NOTE
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This instruction is patterned closely after 26 P.S. ~ 1-602(a) providinl( the measure of damal(es
under the Eminent Domain Code. The statute codified the existing common law by adopting the
"before and after" rule whieh is firmly entrenched in the law of Pennsylvania. BmwlI v.
Commonwealth, 399 Pa. 156, 15fJ A.2d 8HI (1960). Special rules are laid out ia 26 P.S. ~ 1-602(bi,(c), (d)
and (e) governing' condemnation of property in connection with any urban development or
redevelopment project, which property is damaged hy subsisdenee due to failure of surfaee support
resulting from special circumstances and the case of condemnation of property in connection with
any program or project, which property has been damal(ed by flood. The practitioner is advised to
review these sections if appropriate to his case.
Other items of damage may be recovered in an eminent domain case as provided in 2(j 1'.8. S~ I_
60lA, 1.(j11, 1-612, J.fH3, and 1.(j14,
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Date of Last I{evisioll
June lfJH4
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W.O:! (Civ) FAI It MAHKET VALUE
The fair market value is the price which would be ugreed to by a willing and informed
seller and buyer, taking into consideration. but not limited to the following factors:
(1) the present use of the property and its vulue for such use:
(2) the highest ancl best reasonably Ilvuilable use of the property und its value for
such use:
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(4) other factors as to which evidence has been offered, inelucling what you
observed when yoa viewed the condl'mned property, the testimony of the
condemnee, and the testimony of any 'Iualified valuation experts presented.
SUBCOMMITTEE NOTE
This instruction is taken directly fr()m :!(i P.S. * 1-(iO:.l, Accordinl: to the.1 oint State Government
Commission 191i~ Report:
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This section is intended to enlarl:e the traditional delinitioa of fair market value to
conlill'll1 to modern appraisal theory and practice, which differentiates between market
price, which is the price actually paid for a property undcr conditions existinl: at a
certain date re~ardlcs~ of pl'essures, motives. or intelligence. and market value, which is
what a property is actually worth, a theoreticalliJ.!ure which assumes a market amonI'
IOJ.!ical buyers under ideal conditions.
This section contemplates first a "willinl:" seller and buyer. This means that neither is
under abnormal pressure or eompulsion, and both have a reasonable time within which
to act.
Secondly, it contemplates an "informed" seller and buyer, which means thatboth are in
possession of all the facts aecessary to make an intclliJ.!ent judJ.!ment.
:!6. P.S. 1-60a, Comment (Purdon's Supp, IfJ82.)
The other faetors on which evidence mllY be offered in a jury trial in the Court of Common Pleas
ure outlined in :!6 I'.S. *~ 1-70a to 1-70(i.1t is anticipated tbat individual charl:es on each of these items
will assist the jury. (See Pa.SSJI ICiv) !(i,O~, I li.O;), and Hi.Oli.) As written. this instruction en capsules
all of the evidence which the jury may consider.
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HU);'; (Civ) CONTIGUOUS THACTS; UNITY OF USE
In this case, the J(ovcrnmental aJ(ency has condemned:
(u) ,-aU-Im'-a part) of s~ adjoining tracts owned by plaintiff/You shall assess
damages us if such tracts were one parce!.
~b) all (OF a p8rtj-s~ral-tl'Q~~wned-by-plllintiff-whtch-arC"Used-to~"ether-fm'-_1\
-unif'rec!--purpose;-YOlrshall-assells-danmges-mrif-such-tractnvere-one I'U I eel) ~
SUBCOMMITTEE NOTE
This instruction is taken from 2(; P.S. S J.(i05 of the El11ineat Domain Code and codifies existinl:
case law in .110rris o. Cummunwealth, 367 Pa. 410. tiO A.2d 762(1951) (non-contil:uous tract"); H.C.
Friell Colle CU. II. Painter, 198 Pa, 468. 48 A. ao:! Il flO 1) (contil:uous tracts). Where a question of fact
exists as to whether tracts are adjacent or ure used tOl:ether for a unified purpose, the jury should he
in"tructed to make that threshold decision.
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( )(i.1.1 (eiv) EXPElrf VALUATION
In cstahlishinJ:( the proper measure of damaJ:(es, you may considcr thc testi mony I{ivcn
by the qualified valuation cxpert(s) in this case.
SUBCOMMITTEE NOTE
:!6 1'.5. ~ 1-705 governs the use of qualified valuation cxpert testimony under the Eminent
Domain Code. The initial question as to whethcror not the expert is qualified is for the trialjudgc. The
Code outlines the various methods of valuation which lIlay be used hy an expert. It is anticipated that
this instruction will be given to~ethcr with an expert testimony eredibility instruction as fouad in
Pa.SSJI (Civ) ,i.311.
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June IHK-t
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2, The Pennsylvania constitution provides that private property may not be
taken for public use without just compensation being first made. The plaintiff shall be
entitled to just compensation for the taking, injury or destruction of his property. Laub,
Pennsylvania Trial Guide, Section 580.1.
3. It is undisputed in this case that the Commonwealth, in the exercise of its
rights and power of Eminent Domain and by appropriate proceedings, took land from
the plaintiff for highway purposes. Plaintiff is therefore entitled to just compensation for
the taking. Section 1-601 of the Eminent Domain Code of 1964, as amended, 26 P.S.
91-601.
4. Louis Zelazny, Jr. and Darlene E. Zelazny, the condemnees, are the
plaintiffs in this case. Section 502 of the Eminent Domain Code of 1964, as amended,
26 P.S. 91-502.
5. The amount of damages, or just compensation, which you award in this
matter must be based solely and strictly upon the evidence of the fair market value of
the property as of June 24, 1998, the date on which the Commonwealth took part of
plaintiffs' property for highway improvements. All values must be determined as of this
date of condemnation, June 24, 1998. Section 1-402 of the Eminent Domain Code of
1964, as amended, 26 P.S. 91-402.
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6. The term just compensation has been determined to mean compensation
that is just not only to the person whose property is being taken, but also to the ,J ,r
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condemnor, ~~o is in essence the general public or society as a w~ Thus, just
compensation is reasonable compensation and "compensation which is fair to both the
owner and the public when property is taken for public use through condemnation."
Eaton, Real Estate Valuation in Litigation, Second Edition, p. 21; Black's Law
Dictionary, 5~' Edition, "just compensation."
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7. Just compensation is defined by the law as the difference between fair
market value of the landowners' entire property interest immediately before the
condemnation and as unaffected thereby and the fair market value of his entire property
interest remaining immediately after such condemnation and as affected thereby, and
such other damages as are provided by law. Section 1-602(a) of the Eminent Domain
Code of 1964, as amended, 26 P.S. 91-602(a).
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8. Fair market value is the price that would be agreed to by a willing and
informed seller and buyer, taking into consideration, but not limited to, the following
factors: 1) the present use of the property and its value for such use; and 2) the
highest and best reasonably available use of the property and its value for such highest
and best use. Section 1-603 of the Eminent Domain Code of 1964, as amended, 26
P,S.91-603.
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is under abnormal pressure or compulsion and that both have a reasonable time within
13.By the phrase "willing seller and buyer", the law contemplates that neither
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which to act. By the phrase "informed seller and buyer", the law contemplates that both
are in possession of all the facts necessary to make intelligent judgments. Comments
to Section 1-603 of the Eminent Domain Code of 1964, as amended, 26 P.S.s1-603.
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14. Amo" othe, I,oto~ you 'hould oo",ld"" d't'''''I,'" I,t, m''',t ,,'''' ~
are the present use of the property, the highest and best reasonably available Use of the
property, the size of the property, the location of the property, the existence of
improvements on the property, if any, the means of access reasonably available to and
from the property, the zoning of the property, the topography and usability of the
property and the sales price of similar properties in the market area of the property.
Comments to Section 1-603 of the Eminent Domain Code of 1964, as amended, 26
P.S_S1-603.
15.!n this case the plaintiffs have the burden of proving that the value of their
property has been impaired by reason of the taking. Morrisev v. Commonwealth of
Pennsvlvania Department of Hiohwavs. 424 Pa. 87, 225 A.2d 895 (1967). The
plaintiffs, therefore, must satisfy you by a fair preponderance of the credible evidence as
to the amount of damages to which they are entitled. Glider v. Commonwealth of
PennsYlvania. Department of Hiohways. 435 Pa. 140, 225 A.2d 542 (1966); 13 P.L.E.,
Eminent Domain S135.
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16. The burden of proof is upon the plaintiffs to show the extent of the
damages as well as every other material part of its case. Both sides have offered
evidence as to the extent of the damages. Now, it is up to you to say how much the
plaintiffs are entitled to in this case, and the burden of proof is measured by what the
law calls the weight or fair preponderance of the evidence. Laub, Pennsylvania Trial
Guide, Section 580.1; Glider v. Department of Hiohwavs. 435 Pa. 140, 146, 255 A2d
542, 545 (1966); Sweenev v. Urban Redevelopment Authority of Piltsburoh. 429 Pa.
367, _,235 A2d 143, 144, (1967); Fink v. Department of Transportation, 482 A2d
281,287 (1984).
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17. Although you may believe all, a part of or none of the testimony of any
witness who testified, you may not disregard the evidence as to property values
submitted and substitute your own ideas. This does not mean though that you must
return a verdict identical to one of the opinions of just compensation presented. You are
free to make your own determination based upon the facts. Morrisey v. Commonwealth
of PennsYlvania. Department of Hiohways, 424 Pa. 87, 92-93, 225 A2d 895, 898
(1967).
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18. Where it is claimed that a property is or
existing use, the property owner must establish that the land is physically adaptable to
such highest and best use and that there was a need for such use in the area, which
would have been reflected in the market value of the property as of the date of
condemnation, which in this case is June 24,1998. Commonwealth of Pennsylvania.
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Department of General Services v. Fake. 45 Pa, Commonwealth Ct. 46, 405 A,2d 971
(1979).
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19.1n determining whether the property owner has established these
requirements, you should consider the size of the property, the demand for that type of
property in the market area on the date of condemnation, the supply of competitive
properties in the market area for such use on the date of condemnation, existing
improvements on the property, if any, the location of the property and all other pertinent
factors. 26 P.S. 91-603, comment.
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20. With regard to the evidence of the demand in the market for the type of
property in question, such demand must be reflected in the public market as of the date
of condemnation, June 24, 1998. The mere assertion by the plaintiffs or their witnesses
that such demand exists is not enough. The demand must be established by competent
proof. Section 1-603 of the Eminent Domain Code of 1964, as amended, 26 P.S 91-
603 (official comment); Shillito v. Metropolitan Edison Co.. 434 Pa. 172, 252 A,2d 650
(1969).
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21. The property is to be valued without reference to the owner or the actual
state of any business conducted or proposed to be conducted on the land. The
Commonwealth does not condemn business acumen or its results expressed in value.
The Commonwealth condemns property, which ene man may use exceedingly well,
another ill and a third not at all, The uses of one's talents is a private, not a public,
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28. While the plaintiffs in this case have a reasonable right of access to the
state highways, the Department of Transportation has broad authority pursuant to its
regulations to control the flow of traffic onto those highways in the interest of public
safety, as fong as the restrictions are not arbitrary, capricious or otherwise unreasonably
interfere with the plaintiff's right of access. Nardo v. Department of Transportation, 552
A.2d 718 (Pa. Commw. Ct., 1988)
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29. Plaintiffs do not have the right to travel in any particular direction from the
property or upon any particular part of the public right-of-way. Plaintiffs' right of access
extends no further than the right to enter upon the highway or to leave it and have
reasonable connection to the public road system. In Re Mitchell, 228 A.2d 53 (Pa.
Superior Ct., 1967).
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30. The property owners in this case are entitled to compensation or interest
for delay in payment, but this amount shall not be included by you in your verdict or
given any consideration in your deliberations, but will be added to your verdict by the
court after it is rendered. Section 1-611 of the Eminent Domain Code of 1964, as
amended 26 P.S. 91-611.
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COYNE & COYNE
A PROFESSIONAL COIIPOIIATION
ATrORNEYS AT LA W
Henry F. Coyne
Lisa Marie Coyne
Austin F. Grogan
390 I Market Street
Camp lIill. Pennsylvania
17011.4227
717.737.0464
Fax: 717-737-5161
July 2, 2003
Hand Delivered
Hon. Edward E. Guido
Cumberland County Courthouse
One Courthouse Square
Carlisle, PAl 70 13
Rc: Zelaznv. et ux. v. PennDOT
No. 98-3531 Civil Term
(Eminent Domain)
Dear Judge Guido:
We have been advised that this Case has been assigned to your Courtroom for trial on Monday,
July 7, 2003. Attomey Don Smith and I met this morning to address the issues raised in PennDOT's
outstanding Motion in Limine. Attorney Smith and I were able to resolve those issues and it was agreed
that I would communicate our a6'1'eement to the Court by way of this memo.
With regard to PennDOT's Motion in Limine the parties agree that the Condenmees will not
offer testimony concerning the unauthorized use ofCondemnees' property by PennDOT and their agents,
during construction. The Condemnees will not offer photographs depicting the unauthorized use.
Additionally, Condemnees will not offer testimony concerning loss of access or rental income during the
construction phase.
Attorney Smith and I also reviewed the documents and photographs for use at trial. Attorney
Smith has agreed that the 1988 purchase price of the property is not admissible and reference to that price
has been redacted from the Viewer's Plan.
Furthermore, Attorney Smith also agreed that reference to listing agreements, which Mr. and
Mrs, Zelazny had on the property in 1995 (3 years prior to the taking) and in 2000 (2 years after the
taking) are not relevant and will not be offered or referred to at Trial. In lieu of Condenmees filing a
forn11l1 Motion in Limine to preclude the use of this information and documents, Attorney Smith agreed
that that information is not relevant to these proceedings in that the value to be determined is the value of
the property at the time of taking, not the offered value three years prior or two years subsequent.
Attorney Smith and I further agreed that the Appraiser's Reports would not be offered as
evidence as they both contain inadmissible hearsay within hearsay. Rather, it is the opinion of the
experts, which is relevant and admissible aad will be presented through testimony. However, both
parties agree that the photographs of the comparable sales used by the experts may be offered as evidence
without objection.
II. Stlltclllcnt of FlIets as to [)lImlll!es
The laking involved in this highway improvement project rcndered a once two-thirds of an acre
primc commereial comer property to a merc one-tcnth of an acre property. The taking in this case was
the front footage on a double lot and was the flattest, most valuable portion of the property given the
property's existing topography. The portion of the property acquired in the property was the most
develop-able portion of the property not only beclluse it had existing direct access upon Gettysburg Road
but it also allowed a potential buyer the greatest flexibility in developing the property. The usable and
developable areas were also reduced to one-sixth of the prior usable area. Given the highest and best use
of the property as commercial use, there are overall direct and indirect damages which relate to a per
square foot basis.
Additionally, Mr. and Mrs. Zelazny lost the ability to rent their property for the eleven months
while the construction was underway. Theil' property was also used as a construction easement for which
they were not compensated. Lastly, upon determination of damages, Mr. and Mrs. Zelazny are also
entitled to delay damages, which are awarded at the Commercial Loan Rate to be determined and
assigned by the Court post jury verdict. Delay damages flow from November 23, 1998.
III. Issues of Liabilitv and Damal!es
Liability and damages issues concem the area taken, the highest and best use of the property, and
the loss in valuation (Le. damages) to the property as a result of the taking. After the Board of Viewer's
Decision was issued, Penn DOT obtained a new appraisal of the property on March 12, 2001 which
appraised damages to be $45,000.00 rather than the $31,000.00 originally testified to by PennDOT's
appraiser at the Board of View proceedings. The Board of View issued their report on June 13,2000 and
awarded damages in the total amount of $52,650,00.
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IV. LCl!allssues Rel!al'dinl! Admissihilitv of Testimonv and Exhibits
None Known to Condcmnees.
V. Witnesses
(I) Mr. and Mrs, Zelazny - property owners.
(2) Bill Rothman - expert appraiser.
VI. Exhibits
(I) Condemnees may use photographs as prcsented during Board of View. Photographs are
of the property at issue.
(2) Plan ofTaking.
(3) View of Premises is requested.
VII. Settlement Nel!otiations
Condemnees received payment of $31,000.00 on August 15, 1998 from PennDOT. Then, after
PennDOT retained a new appraiser after the Board of View, PennDOT tendered payment of an
additional $11,000.00 in 2002 for a total payment to date of $42,000.00. On January 10, 2003,
PennDOT offered $45,000.00 plus delay damages, Mr. and Mrs. Zelazny have offered $95,000.00.
Respectfully submitted,
Dated:
":'-15'-03
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CERTIFICATE OF SERVICE
1, Lisa Marie Coyne, Esquire, hcreby certify that the toregoing Condemnees' Pretrial
Dated: 6-/~-o]
, Esquire
Memorandum Pursuant to Local Rule of Court No. 212.4 was scrved by way of lirst class mail, postage
prepaid, upon the following individual:
Donald J. Smith, Esquire
Office of Chief Counsel
Department of Transportation
P. O. Box 8212
Harrisburg, PA 17105-8212
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LOUIS ZELAZNY, JR., and
DARLENE ZELAZNY,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Defendant
98-3531 CIVIL TERM
PRETRIAL CONFERENCE
At a pretrial conference held January 15, 2003,
before Edward E. Guido, Judge, present for the Plaintiff was Lisa
Marie Coyne, Esquire, and for Defendant, Stuart A. Liner, Esquire.
This is a condemnation case that the parties agree
will take approximately 2 days to try. Both parties are
requesting a view of the premises which will encompass one half
day.
Neither the Commonwealth attorney nor its expert is
available for trial during the February term. Therefore, without
objection from the Condemnees, this matter is continued to the
March term. The Court Administrator is directed to relist it.
Both counsel are deemed to be attached to this Court
for the March term, No further continuances will be granted,
absent an emergency.
The Commonwealth has just filed a motion in limine.
The Condemnees indicate that they intend to respond. This matter
shall be addressed to the trial judge.
Settlement does not appear to be likely. The demand
is at $95,000. The offer is at $45,000.
Edward E. Guido, J.
appointed by this Honorable Court on August 9, 1999. The site view wus held on December 14,
1999 and the viewers' hearing was held on January 20,2000.
II. Statement of Basic Facts as to Damages
At the viewers hearing, Plaintiffs offered the testimony of Willium F. Rothman, a
qualified valuation expert, as to damages in the amount of$75,000.00. The Defendant offered
the testimony of Lynn Carroll, a qualified valuation expert, as to damages in the amount of
$31,000.00.
On June 13,2000, a report of viewers was filed awarding the Plaintiffs damages in the
amount of$52,650.00 that included $45,000.00 for the taking of the subject property, $6,000.00
for lost rent, and $1,650.00 for use of the property for parking and storage of construction
vehicles. The Plaintiffs appealed on or about July 12, 2000, and the Defendant appealed the
specific award of damages of $6,000.00 for lost rent and $1,650.00 for use of the subject property
for parking and storage of construction vehicles,
III. Statement as to Principal Issues of Liability and Damages
The Defendant is liable for payment of just compensation as to the Plaintiffs for the
taking, injury or destruction of the subject property, as determined as set fOlth in the Eminent
Domain Code, 26 P.S. {l1-101 et seq.
IV. Summary of Legal Issues Regarding Admissibility of Testimony and Exhibits
On March 1,2001, Defendant filed a Motion in Limine to Prohibit Evidence or
Testimony and a Brief in Support thereof. The Defendant respectfully requests the Court to: I)
prohibit Plaintiffs from offering evidenec or testimony relating to construction vchiclcs parked
on the subject property outside thc requircd right of way; and 2) prohibit PlaintitT.~ from offcring
evidence or testimony relating to any loss of income as result of the taking. The legal authority
relied upon by the Defcndant in making this request is contained within the Defendant's brief in
support ofthe motion in limine. In addition, the Defendant would cite to this Court the case of
Lutzko v. Mikris, Inc., 410 A.2d 370 (Pa. Cmwlth. 1979) (no recovery may be obtained through
eminent domain proceedings where the injuries resulted from a trespass and no de facto taking
may result from negligent aets committed by the agents of the condemning body).
V. The Identity of Witnesses to be Called
I) Jay D, Matthews - qualified valuation expert
2) Luis Villegas - District Pennit Manager, Department of Transportation
VI. List of Exhibits
I) Viewers Plan
2) Appraisal Report of Jay D, Matthews and photographs contained therein
VII. Current Status of Settlement Negotiations
The Defendant's qualified valuation expert will testifY at trial to damages in the amount
of $42,000.00. By letter of January 10, 2003, the Defendant offered to settle this matter for
$45,000.00 plus delay damages calculated from November 23, 1998, the date of possession,
pursuant to ~1-6Il of the Eminent Domain Code, 26 P.S. ~1-611. Although the Plaintiffs
CERTIFICATE OF SERVICE
I Iwrcby ccrtily that on March 16. 2000, a true and corrcct copy of the Il)rcgoing
"Praccipc for Disconlinuancc" was scrvcd by mcans of Unitcd Slates mail, first class, postagc
prcpaid, upon thc following:
Christopher 1. Clements
Ortiee of Chief Counsel
Department ofTransf,ortation
555 Walnut Street, 911 Floor
Harrisburg, P A 17101-1900
<~~-\~f~~' \~ r ~JL
Stephanie H, Pcck
LOUIS ZELAZNY, ,JR., and
DARLENE Eo ZELAZNY,
Condcmnccs
: IN TilE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY. PENNSYLVANIA
: CIVIL DIVISION - LAW
VS.
DEPARTMENT OF
TRANSPORTATION
COMMONWEALTH OF PA.
Condcmnor
: NO. 98-3531 CIVIL TERM
: IN REM (EMINENT DOMAIN)
NOTICE OF FILING OF REPORT OF VIEWERS
Louis Zclazny, Jr.
Darlcnc Zelazny
1028 Conntry Club Road
Camp Hill, PA 17011
Lisa Coync
Coyne & Coync
390 I Markct Strect
Camp Hill, PA 170Il
Stuart A. Lincr
Dcpt. of Transportation
555 Walnut Street
Harrisburg, PA 17101
-.'7t
Encloserl herein pleasc find report of the Board of View dated May:~ ,2000,
concerning the premises owned by PlaintilT-Condemnee situate in Lower Allcn Township,
Cumberland County, Pennsylvania. The said report shall be filed in the Ol1i~e of the
Prothonotary of the Court of Common Pleas for Cumberland County on G t t':j , 2000.
The report shall become finalnnless an appeal therefrom is filed within thirty (30) days
from the date the report is filed.
Board of View
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Elmer R. Ritter
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5. Thc total arca of taking is 5,186 squarc feet with 3,338 squarc fcet in fec simple
and an additional 1,848 squarc fect as slopc cascmcnt.
6, The total arca of thc taking and thc slopc cascmcnt of thc subjcct property was
taken from, thc flattcst area of the propcrty which fronted onto Gcttysburg Road_ (NT. 13)
7. The total area of the taking involved a taking of approximately 25 feet deep of
right-of-way and II feet deep of slope easement along the 180 foot frontage of the subject
property, (NT. 127; Rothman's Appraisal, 24)
8. On August 15, 1998, pursuant to the Eminent Domain Code of Pennsylvania,
PennDOT paid estimated just compensation to Mr. and Mrs. Zelazny in the amount of Thirty-one
Thousand Dollars ($31,000.00).
9. On May 20, 1998, pursuant to the Eminent Domain Code of Pennsylvania, PennDOT
paid to Mr, and Mrs, Zelazny Five Hundred Dollars ($500.00) which was to compensate Mr. and
Mrs. Zelazny for their attorney fees, engineering fees, and appraisal fees, collectively.
10. The property in question is located directly at the rear entrance to the Capital City
Mall shopping area and is in a predominately commercial setting with some warehousing just to
the east of the subject property and the Capital City Mall, one of the largest enclosed malls in the
area, is to the south of the property.
II. The daily traffic count for the intersection and road immediately in front of the subject
property is 25,000 cars a day which is one of the highest commercial traffic count sights in the
immediate area. (N.T., 8)
12, Traffic count at the intersection of Gettysburg Road and Hartzdale Drive, which is
immediately in front of the subject property, has a greater daily traffie count than the intersection
of Market Street and Routes 1I/15 in the Borough of Camp Hill. (N,T. 12)
13, The high traffic count makes the property less desirable as a residential property
and more desirable as a use for a commercial type development.
14. The PennDOT project at issue involved widening Gettysburg road from a two lane
road to a five lane highway so as to accommodate even greater traffic flow than the 25,000 a day
traffic count in 1995,
15. 28th Street is a one-way street immediately adjacent to the subject property.
16. Prior to the taking, the subject property contained a semi-circular driveway whereby
access to and from the property could be made either directly onto 28th Street or directly onto
Gettysburg Road.
17. The scmi-circular driveway with access onto Gcttysburg Road had bccn In
cxistcnce sincc 1923. (N.T, 94)
18. As a result or thc taking, thc only point or access to and point or cxit from thc
propcrty is onto thc onc-way strect, 28'10 Strcct.
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19. As a rcsult of the taking, thcrc is no direct access rrom thc property onto Gettysburg
Road so that ifMr. and Mrs. Zclazny want to cxit thcir property thcy have to now awkwardly
back onto the one-way street, 28'10 Strcet, and then go entirely arollnd the block to aceess
Gettysburg Road.
20. As a result of the taking, there was no direct driveway acccss to the property from
November 1998 through October 1999 because during thc construction phase all access to the
property was limited by toot trame alone and the property not taken in this procecding, was uscd
by PennDOT and or their agent as parking for their constmction vehicles throughout the
construction phase of the project.
21. In 1998, Mr. and Mrs. Zelazny's property was zoned R-3 under the Lower Allen
Township Zoning Ordinance; however, in 1995, the property was zoned R-P-O which has greater
limits on zoning uses than under an R-3 zone. Furthermore, Lower Allen Township's R-3 zone
permits more extensive and diverse commercial uses than permitted uses in their R-P-O zone,
(NT 160)
22. R-3 zoning district in Lower Allen Township provides tor a Neighborhood Residential
District whose permitted uses include for example, residential uses as well as retail/office,
restaurants, and banking and financial establishments. (Rothman's Appraisal),
23. Immediately to the rear of the subject property, the area is zoned R-1 and directly
across the street the area is zoned commercial; both areas are within Lower Allen Township,
24. The highest and best use of this property permitted under the Zoning Ordinance prior
to and after the taking is as a commercial use such as a retail, office, restaurant, or bank; not
residential use. (N. T. 12)
25. As a result of this road expansion project, the newly expanded Gettysburg Road
and its supporting easement is now within five feet (5') of the front door of Mr. and Mrs.
Zelazny's property, whereas before the condemnation, Gettysburg road was only a two lane road
and was more than twentyfive feet (25') from the front door of the property, (Site Plan; Mr.
Carroll's Appraisal, page 20).
26. Two large mature maple trees in excess of twenty-five (25') in height had to be
destroyed as a result of the condemnation project. (NT 15,)
.....
27. As a rcsult of the taking, thc dcvclop-ablc portion of this propcrty wcnt from
two-thirds ofonc acre to one-tenth of one acrc, (N.T. 16).
28. Thc value of the subjcct property immcdiately prior to the taking by the
Dcpartmcnt of Transportation was purported to bc $200,000.00 to $225,000,00, by thc Plaintiff.
(N,T. 17,73),
29. Thc value of thc subjeet property aileI' thc taking and as affected thcreby was
purportcd to bc $100,000.00 to $125,000.00, by thc Plaintiff: (N,T, 18,74).
30, Mr, and Mrs. Zelazny's just compcnsation due for thcir property acquired by
PcnnDOT is stated in the conclusion of this rcport.
31. Access to thc property was not available to the property owner during the
construction phasc as the property was totally inacccssible because of construction vehicles
parking and using the property during thc cleven month construction phase of this project. The
only way to access the property was by parking at some distance away from the property on 28tb
Strcet away and walking up the hill to the property. (N. T. 75).
32. Ncither PennDOT nor their agents have compensated Mr. and Mrs. Zelazny for use of
their property for parking and storage of their construction vehicles and which a fair market rental
value is due to them. (N.T. 76),
33. Prior to construction work bcginning on the project, the property was rented at
Eight Hundred Dollars ($800.00) per month; however, upon the commencement of the
eonstruction and the inability to access the property or use of the property, Mr. and Mrs.
Zelazny's tenant terminated their lease and vacated the property and the property has remained
vaeant despite efforts made by Mr. Zelazny to rent the property. Some Rental loss through the
Board of View hearing due to them. (N.T. 76, 105).
34. There was no construction easement sought concerning Mr. and Mrs. Zelazny's
property; nor was any rental payments offered by PennDOT,
35. Mr. Rothman, who testified on behalf of Mr. and Mrs. Zelazny, is a real estate broker,
developer of commercial and residential property and an independent licensed general real estate
appraiser, has the expertise, knowledge, and licensing ability to appraise residential and
commercial properties. (NT 7, 16, 156)
36. Mr. Carroll, a PennDOT appraiser and a full-time PennDOT employee, testified on
behalf of his employer only as a residential appraiscr and as such is not licensed to and is not
competent to do appraisals coneerning commercial properties. (N.T, 107, 152)
37. Dclay Damagcs pCI' an award of just compensation must be calculated from
November 23,1998, the date ofthc filing ofthc Declaration of Taking.
CONCLllSIONS OF LAW:
I. A property owncr shall be cntitlcd to just compensation lor the taking, injury or
destruction of his property. 26 Pa, C.S, Scction 1-601.
2. "Just Compensation" is defined as consisting of "the diflerence between the fair market
value of the condemnee's entire property interest immediately before the condemnation and as
unaffected thereby and the fair market valuc of his property interest remaining immediately after
such condemnation and as affected thereby. and such other damages as are provided in this code
...." 26 Pa. C.S, Section 1-602(a).
3. Fair market value is defined as the price which would be agreed to by a willing and
informed seller and buyer, taking into consideration, but not limited to the present use of the
property and its value for such use; the highest and best reasonably available use of the property
and its value for such use; the machinery, equipment and fixtures forming part of the real estate
taken; and other factors as to which evidence may be offered. 26 Pa. C.S. Seetion 1-603.
4. The Board of View may rely on expert opinion testimony to determine the damages
and the fair market values of properties which are condemned; however, the weight to give such
testimony is clearly within the sound discretion of the Board of View. In Re Condemnation by
PennDOT, 93 Pa. Commonwealth 403, 50 I A.2d 1 172 (1985).
5. The Condemnees in their own right and without further qualification may testify as to
just compensation and the valuation of their property without the required constraints of the
Condemnor's expert, 26 Pa. C.S. Section 1-704; Columbia Gas Transmission Corp. v. Piper. 150
Pa, Commonwealth. 404, 615 A.2d 979 (1992).
6, Condemnation damages need not be based upon use currently being made of
condemnee's property if in fact its highest and best use is shown to be for some other, more
valuable purpose. Pennsvlvania Gas & Water Co. v. Pennsylvania Turnpike Commission, 428 Pa.
74,236 A2d 112 (1967).
DISCUSSION:
Belore this Board determines what amount of 'just compensation" or damages is due Mr.
and Mrs. Zelazny, the Board must first analysis and determine the highest and best use of 2800
GettysburgRoad, both before and then after PennDOT's taking to effectuate the expansion of
Gettysburg Road from a two lane road to a five lane highway.
It is undisputed that Gettysburg Road is immediately adjaccntto the subjcct property and
has one of the highcst daily trallic count of cars and tnlcks in the area-higher than even the
interscction of Market Street and Routes 11/15 in Camp Hill Borough. Tratlic count analysis
along with the gencral nature of the area surrounding a property is considered in evaluating and
detcrmining a property's highest and best use. Here, Mr, and Mrs, Zclazny's property is located
immcdiately aeross from the rear entrance to the Capital City Mall Shopping Mall area, one of the
largest enclosed malls in the area, Immediately across the street from Mr. and Mrs. Zelazny's
property are commercial uses to include Battery Warehouse, business otlices, and Royer's
Flowers to name a few uses. Additionally, various commercial warehouses are located to the east
of the property and a travel agency and optician's office to the west of the property. It is only to
the immediate rear of the property where exclusive residential use is mandated by way of R-1
zoning district designation.
The property at issue is located in the R-3 zoning district of the Township. This zoning
district permits varied residential and commercial uses of property located therein. As such,
merely because a property may be used as a residential use, it does not necessarily mean that
another permitted, higher and better use cannot be placed thereon. Said another way, the current
use of a property does not necessarily determine its highest and best use, Pennsvlvania Gas &
Water Co. v. Pennsylvania Turnpike Commission, 428 Pa. 74, 236 A2d 112 (1967). That is where
the expert opinions become relevant to the Board.
In this case, two experts testified and the weight and credibility to be given either expert
is for the Board to determine. Clearly, however, in evaluating the expert opinions the depth of
knowledge, experience, credentials and expertise must defer in favor of Mr. Rothman. Mr.
William Rothman's credentials include being a long-term resident of the area, being a real estate
developer of commercial as well as residential properties and uses in Cumberland County, being a
licensed general appraiser licensed by the Commonwealth of Pennsylvania to render expert
appraisals concerning commercial as well as residential properties. Mr. Rothman is an independent
appraiser. He renders expert valuations and appraisal on behalf of condemnors as well as
condemnees alike and he has, on occasion, rendered expert valuations and appraisals on behalf of
PennDOT.
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By contrast, Mr, Lynn Carroll, PennDOT's cxpert is not an independent appraiser; he is a
fulltime employee of PennDOT. Mr. Carroll is not licensed or qualitied to render expert appraisals
concerning commercial properties, only residential properties as he is merely a residential
appraiser. Mr. Carroll is also not a realtor nor has he been a real estate developer of commercial
and residential properties and uses.
Mr. Rothman testified that along with an analysis of the permitted zoning uses, knowledge
of the area, location of the property along Gettysburg Road, the need and demand for commercial
property in this area, the highest and best use of Mr. and Mrs. Zelazny's parcels are not
residential, but commercial use. As such, a commercially develop-able piece of property has a
greater per square toot value than a residentially develop-able pieee of property.
In addition to Mr. Rothman's expert opinion as to the commercial use of the property, it is
interesting to note that the market itself also discerned this truth as welL At the Board's hearing,
Mr. Zelazny testified that he had indeed tried to sell the property (the lot with the house) as a
residential listing in 1995. However, he was unable to sell the property, The obvious lack of
attractiveness of the property as a residential use for a family was evident in ] 995 when Mr.
Zelazny could not even find a residential buyer for the property. Therefore, clearly this property's
highest and best use before the taking was as a commercial use. We also know that Mr, Zelazny
himself had given thought and action to developing the property itself for possibly a small
restaurant or a Dairy Queen, a bank, or an automotive garage, among other types of permitted
commercial uses.
As for the highest and best use after the taking, it clearly remains as a commercial use.
Commercial use is supported by the existing permitted zoning uses, the location of this property in
the general commercial area of the Township, and the expansion of Gettysburg Road from a two
lane road to a five lane highway. Additionally, the faet that Mr. and Mrs. Zelazny's tenant
terminated the lease and vacated of the property when construction commenced speaks volumes
as to the undesireableness of the property for residential uses with the front door now five feet
from a five lane highway's road surface and slope easement, See Mr. Carroll's Appraisal, page 20,
Because PennDOT's expert clearly failed to accurately and fairly define or even consider
the highest and best use of this property as commercial use, the Board can discount Mr. Carroll's
appraisal report and expcrt opinion and spccifically lind that it is not binding. In doing so we thcn
turn to valuation of thc propcrty and thc damagcs which arc gcncratcd by this taking.
Mr, Zelazny tcstificd that hc Iblt his damages were $125,000.00 which rcprescnts the
difference in thc valuc of his propcrty before thc taking and the value of his property after the
taking, as allected thercby. In particular Mr, Zelazny and Mr. Rothman testilied that prior to the
taking Mr, and Mrs. Zelazny had two primc commercially viable and develop-able lots located at
one of the busiest commercial intersections in the general West Shore/Capital City Mall area.
Their property was uniquc in that it had access directly onto Gettysburg Road as well as access
directly onto 28th Street, a one-way street adjacent to the parcels. In particular, there was a two
car width curb cut on Gettysburg Road and property also had a deep, level frontage along
Gettysburg Road. Mr. Rothman's Appraisal, page 24, Mr. Zelazny's opinion as to the value of his
property before the taking was $225,000.00. This compares very closely to the before value as
determined by Mr. Rothman, Mr. Rothman determined his appraised value for Mr. and Mrs.
Zelazny's property by comparisons with similar comer commercial properties both on the West
Shore area as well as one comparison from the East Shore, Mr, Rothman's prime consideration
for comparison properties was to find eorner properties with signalization and permitted
commercial uses and with similarly significantly high traffic count. The comparisons used by Mr.
Rothman fit those requirements. Moreover, the two comparisons inquired of Mr. Rothman by
PennDOT (the Commerce Bank property and the Russell Industrial Park property) were not good
comparisons because, as Mr, Rothman explained, of the signifieantly lower traffic count and lack
of signalizations, among other considerations at those sites, made those properties inappropriate
comparables to the Zelazny property.
As such, Mr. Rothman testified that the damages incurred by Mr. Zelazny were
$75,000.00 whereas Mr. Zelazny testified that the damages were $125,000,00. In particular Mr.
Rothman testified that by removing the large amount of frontage square footage both in fee simple
as well as in a slope easement, rendered Mr. and Mrs. Zelazny's once two thirds of an acre prime
commercial corner property to now a one-tenth of an acre. (NT 15-16) So that as a result of the
taking, the usable and develop-able areas have been reduced to one-sixth of the prior usable area.
(N.T. 16)
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Mr. Rothman properly testificd that his dctermination of damagcs was comprised of both
direct damagcs on a pcr squarc foot basis as wcll as the ovcrall indircct damagcs to the property.
Similarly, PcnnDOT's cxpcrt had to determinc both dircct and indircct damagcs; however, as wc
discussed above, PennDOT's determination of the actual amount of damages was not credible
because Mr. Carroll inaccuratcly dctcrmincd thc highest and best usc of the property to be only
residential usc and not commercial use.
As tor indirect damages, both Mr, Zelazny and Mr. Rothman spoke at length about the loss of
access to the property because the driveway access onto Gettysburg Road was cut-off thereby
limiting aceess and egress of the property to the awkwardness of 28'h Street, a one-way street.
Access to the property is now not convenient nor is there direct access to Gettysburg Road
available. Additionally, Mr. Zelazny and Mr. Rothman explained that it was not merely the fact
that square foot frontage was taken by PennDOT, it is the fact that the square foot frontage was
the flattest, most valuable portion of the property given the property's existing topography. That
portion of the property was the most developable portion of the property not only because it had
existing direet access upon Gettysburg Road, but it also allowed a potential commercial buyer the
greatest flexibility in developing the property. (NT 49) That flexibility was greatly diminished, if
not entirely diminished, after the taking and directly and indirectly affected the value of the
property now at issue. Id. Nevertheless, the highest and best use of Mr, and Mrs. Zelazny's
property remains that of commercial use. Mr. Rothman testified at length that there are many
commercial users who could make use of the property now at a much reduced value. Mr.
Rothman dismissed quite persuasively the notion by PennDOT that because the property is not a
full acre it cannot be developed into a commercially viable use. Mr, Rothman gave two specific
examples of banks using corner lots for branch offices. As Mr. Rothman suggested, one only has
to look at the Keystone Financial branch at the comer ofSt. Johns Road and Trindle Road (across
from the historic Peace Church) or the new Pennsylvania State Bank at the comer of Wertzville
Road and East Penn Drive to see small parcels developed for commercial financial uses,
Lastly, there was undisputed testimony that Mr. and Mrs. Zelazny lost the ability to rent
their property for its fair market value for eleven months while the construction was underway for
this project. Additionally, Mr. and Mrs, Zelazny' property was used as a construction easement
for which they have not been compensated. The use by Penn DOT and their agent was established
both by the tcstimony and thc photographic cvidencc submittcd by Mr. and Mrs. Zclazny. With
thc use cstablishcd, compensation must c1carly then follow, Mr. Zelazny suggested $400.00 pcr
month for the elcvcn month pcriod lor a total of $4,400.00. Furthermorc, this proposcd rcntal
valuc amount was not disputcd by PennDOT as being unrcasonable in rcntal term or value.
Therefore, the construction easement rental along with thc actual lost rental for the housc, must
be considered in any amount of damages to be awarded by this Board, Additionally, no matter
what the amount of damages which may be awarded by this Board, delay damages must flow
therefrom if this Board will assuredly determines damages greater than PcnnDOT's proposed
damages of $31,000.00. The damages due to Mr, and Mrs. Zelazny are for the construction
easement rental and the lost or diminished rental of the house along with direet and indirect
damages which represents the damages caused to their commercially viable and usable property.
CONCLUSION:
The Board of View reports that after a careful and impartial consideration of all the
evidence submitted to it and after a careful view of the subject premises taken by reason of the
acquired right-of-way area situate in East Pennsboro Township, Cumberland County,
Pennsylvania as shown on Condemnor's viewers plan marked as an Exhibit to this matter does
find and award the following unto Mr. & Mrs, Zelazny damages pursuant to the Pennsylvania
Eminent Domain Code in the amount of Six Thousand ($6,000.00) Dollars for lost rent; One
Thousand Six Hundred Fifty ($1,650.00) use of property for parking and the amount of Forty-five
Thousand ($45,000.00) for the taking of property for a total of Fifty-two Thousand Six Hundred
Fifty ($52,650.00) Dollars due and owing together with delay damages from November 23, 1998
as a result of Penn DOT's taking 01'5,186 frontage square feet consisting of fee simple taking and
slope easement 01'2800 Gettysburg Road, Lower Allen Township, Cumberland County,
Pennsylvania, and the related damages resultant therefrom.
The following is the assessment of the costs of the Viewers:
William A. Duncan, Chairman
I Irvine Row
Carlisle, P A 17013
5 days @ 250.00
certified mailings 12-99
certified mailings 11-99
Total due Chairman
$1,250.00
29.80
32.78
$1,312.58
Elmer L. Ritter
712 S. Market Street
Mechanicsburg, PA 17055
3 days@ 125.00
$375.00
R. Fred Hefelfinger
247 Baltimore
Carlisle, P A 17013
3 days@ 125.00
$375.00
TOTAL COST OF VIEWERS $2,062.58
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Elmer L. Ritter
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Louis Zelazny, Jr., and
Darlene E. Zelazny,
Condemnees
:IN TilE COURT OF COMMON PLEAS
:OF CUMBERLAND COUNTY,
: PENNSYLVANIA
V.
: CIVIL DIVISION-LAW
Department of Transportation
Commonwealth of PennsylvlInia
Condemnor
NO. 98-3531 CIVIL TERM
IN REM (EMINENT DOMAIN)
NOTICE OF VIEW
TO: R. Fred Hefelfinger
247 Baltimore Street
Carlisle, PA 17013
Elmer L. Ritter
712 S. Market Street
Mechanicsburg, PA 17055
William A Duncan, Chairman
I Irvine Row
Carlisle, P A 17013
Commonwealth of Pennsylvania
Department of Transportation
Stuart A Liner
555 Walnut Street 9th FI.
Harrisburg, PA 17101
Lisa M, Coyne Louis Zelazny
3901 Market Street Darlene Zelazny
Camp Hill, PAl 70 11 1028 Country Club Road
Camp Hill, PA 17/01
NOTICE IS HEREBY GIVEN that an Order of the Court of Common Pleas of
Cumberland County has been issued to William A Duncan, Esquire, R. Fred Hefelfinger and
Elmer L. Ritter, directing them to view the premises of the Defendants, located at 2800
Gettysburg Road, Lower Allen Township, Cumberland County, Pennsylvania, to view the said
premises, the said Viewers will meet at the site, on DECEMBER 14, 1999 at 10:00 AM. 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.
William A Duncan, Esquire
R. Fred Hefelfinger
Elmer L. Ritter
Board of View
Certified Mail-RRR
November;2 7{d 1999
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4. On or about Dcccmber 16, 1999, all partics involved wcre mailed return rcccipt
rcqucstcd the Noticc onlcaring would bc hcld on January 20, 2000 at 1 :00 P,M. in thc 2nd Floor
Hcaring Room ofthc Old Court Housc, I Courthouse Square, Carlisle, Cumberland County,
Pcnnsylvania.
5, On January 12,2000, William A. Duncan was notificd by Henry W, Rhoads, Attorney
for thc Claimants that this matter had bcen scttlcd and thcrc was no nccd for a hearing to be held.
The following is the assessment of the costs of the Viewers:
William A. Duncan, Chairman
1 Irvine Row
Carlisle, PA 17013
Elmer L, Ritter
712 Market Street
Mechanicsburg, P A 17055
R, Fred Hefelfingcr
247 Baltimore Street
Carlisle, PAl 70 13
William A. Duncan
William A. Duncan
William A. Duncan
2 day @ $250.00 = $500.00
6 RRR mailings@2.98=$17,88 for the View
6 RRR mailings @2.98 = $17.88 for the Hearing
Total due Chairman, William A. Duncan, Esquire $535.76
Elmer Ritter 1 day site view I day @ 125,00 = $125.00
Fred Heffelfinger 1 day site view 1 day@ 125.00 = $125.00
Total Cost of Viewers $ 785.76
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," .
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION, OF RIGHT
OF WAY FOR STATE ROUTE
2014, SECTION 019, IN THE
TOWNSHIP OF LOWER ALLEN,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 98-3531 - Civil Tcrm
PROPERTY OF RICHARD B.
THOMSON AND RICHARD
WILTANGER, CO-PARTNERS,
EMINENT DOMAIN PROCEEDINGS IN REM
Plaintiffs
Claim No. 210412900
ORDER
AND NOW, this I) ~ay of 4 ~, 1999, upon considcration of thc
t/
Petition for the Appointment of a Board Viewcrs of Richard B. Thomson and Richard Wiltanger,
Co-Partners, the Condcmnees in the within action, thc Court appoints:
~i#u ~,~ f:,~
~L ~PYv
CkthU A:. /~
as a Board of Viewers to assess damages in the condemnation and furthcr orders that the Board
of Viewers perform its duties in accordance with the law and the Acts of Assembly and grants
leave to the Board of Viewers to issuc an interrogatory report or interrogatory reports covering
such properties or claims as the Board of V icwers determines appropriatc.
J.
,100681.1
(. . ",.-~.''''
OS.2IB.9BI
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
www.dol.slale.pa.us
Ofjice ()/ClliefCounsel
555 Wall/ut Street--9tJr Floor
Harrisburg, PA /7/01-/900
(7/7) 787-3/28 FAX 772-274/
Cumberland County Prothonotary
1 Courthouse Square
Carlisle, PA /7013-3387
October 6, 1999
Re: In Re Condemnation by the Commonwcalth of
Pennsylvania, Department ofTransportation, of RighI of Way
for S.R. 2014, Section 019, in the Township of Lower Allen
No. 98-3531. Civil Term
Claimant: Richard B. Thompson aad Richard Wiltangcl'.
Co-Partners
Claim No. 210412900
TOTHE PROTHONOTARY:
Please find enclosed for filing in the above-captioned matter my praecipc lilr appcarancc
on behalf of the Commonwealth. Certificate of service is attached.
Thank you for your time and attention with regard to this matter,
Very truly yours,
F COUNSEL
lements
-Chargc
99-10-#0 I
cc: William J. Cressler, Assistant Chief Counsel
Real Property Division
Marlin N. Brownawell, RJW Admin., Disl. 8-0
Henry W, Rhoads, Esq.
attach.
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William A. Duncan
Susan J, Hartman
October 7,1999
Duncan & Harlm!ln, P.C.
Attorneys at Law
One Irvine Row
Carlisle, Pennsylvania 17013
(717) 249-7780
FAX (717) 249-7800
Joseph A. Klein, P.C.
Mark S. Silver
Suite 200
100 Chestnut Street
Harrisburg, PA 17108
RE:
RE:
RE:
JRE:
RE:
Office of Chief Counsel
Department of Transportation
Christopher J, Clements
555 Walnut Street 9th Floor
Harrisburg, PA 17101-2741
Condemnation by the Commonwealth of Pennsylvania
Department of Transportation Right-of-Way
S.R. 0581, Section A01, a Limited Access Highway
NO. 1571 Civil 1993
Fittrer, Robert R. & Vera
Condemnation by the Commonwealth of Pennsylvania
Department of Transportation Right-of-Way
S.R. 0581, Section AOl, a Limited Access Highway
NO. 1568 Civil 1993
Basehore, Donald L. & lean B.
Condemnation by the Commonwealth of Pennsylvania
Department of Transportation Right-of-Way
S.R. 0015, Section A14, a Limited Access Highway
NO:4176 Civil 1994
Claimant: Dorothy Dyer
Claim No. 2104083
Condemnation by the Commonwealth of Pennsylvania
Department of Transportation Right-of-Way
S.R. 2014, Section 019, Lower Allen Township
Claim No: 210412900
Claimant: Richard B. Thompson & Richard Wiltanger
Condemnation by the Commonwealth of Pennsylvania
Department of Transportation Right-of-Way
S.R, 2014, Section 019, Lower Allen Township
Claimant: Mechanicsburg Land Company
OS.2 (B.OB)
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OFTRANSPORTATION
WWW.dot.stale.pa.us
OFFICE OF C/II/:'F COUSEL
555 Wall/lU Slr/'el 9'h Flllllr
IJllrrishllrg, PA /7/0/./90(}
(7/7) 787.3128 FAX 772.274/
@
Mr. Willirun Duncan, Esquirc
Chairman, Cumberland County Board of Vicw
Onc Irvinc Row
Carlisle, PA 17013-3019
Octohcl' 1 R, 1999
Dcar Chairman Duncan:
Rc: In Rc Condemnation by thc Commonwcalth of
Pcnnsylvania, Dcpartmcnt of Transportation, of
Right of Way for S.R, 2014, Scctian 019, in the
Township of Lower Allcn
No. 98-3531. Civil Tcrm
Claimants: Richard B. Thompson and Richard Wiltanger,
Co-Partners
Claim No. 210412900
Reference is made to your correspondencc dated October 7, 1999. Please be advised that
the Department has yet to prepare a viewers plan for the above-captioned claim. With the
agreement of counsel for the claimants, the Department would be willing to attend a site view
utilizing right of way and construction plans in lieu of a final viewers plan. We would then
attempt to completc the viewers plan by the date of any hearing. In any event, we will make
every effort to prepare a viewers plan in the next thirty days.
As of this date, I am available for a site view every day in November and Deccmber
except the following:
November 9-1/, 17,25-26,
Decembcr 6-10, 24-31.
Thank you for your time and attention with regard to this matter.
Very truly yours,
F COUNSEL
By:
Ch . op e . Clements
Asst. Coun el in-Charge
99-10#01
ce: William J. Cressler, Assistant Chief Counsel
Real Property Division
Marlin N. Brownawell, RIW Admin.. Disl. 8-0
Henry W. Rhoads, Esq.
CONDEMNATION BY THE :IN THE COURT OF COMMON PLEAS
COMMONWEALTH OF PENNSYLVANIA :OF CUMBERLAND COUNTY.
DEPARTMENT OF TRANSPORTATION : PENNSYLVANIA
OF RIGHT-OF-WAY FOR S.R, 2014
SECTION 019. IN THE TOWNSHIP OF : CIVIL DIVISION-LAW
LOWER ALLEN
RICHARD B. THOMPSON AND
RICHARD WILTANGE~ CO-PARTNER
PLAINTIFFS
V.
.
.
Department of Transportation
Commonwealth of Pennsylvania
.
.
: NO. 98-3531 CIVIL TERM
: IN REM (EMINENT DOMAIN)
NOTICE OF HE~G
TO: R. Fred Hefelfinger
247 Baltimore Street
Carlisle, PA 17013
Elmer L. Ritter
712 S. Market Street
Mechanicsburg, P A 17055
William A Duncan, Chainnan
1 Irvine Row
Carlisle, P A 17013
Commonwealth of Pennsylvania
Department of Transportation
Christopher J. Clements
555 Walnut Street 9th FI.
Harrisburg, P A 1710 1
Henry W. Rhoads
1 S. Market Square
12 Floor
Harrisburg, P A 17108
Richard B. Thompson
Richard Wiltanger
Food Engineering, Inc,
2507 Old Gettysburg Rd.
Camp Hill, PA 17011
NOTICE IS HEREBY GIVEN that the Board of View Hearing for the above captioned
case is scheduled for January 20, 2000, at 1 :00 P.M. in the 2nd Floor Hearing Room of the Old
Court House, 1 Courthouse Square, Carlisle, Cumberland County, Pennsylvania.
Should the parties to this proceeding agree to a continuance or rescheduling, you are
directed to notifY William A. Duncan, Esquire, immediately.
William A. Duncan, Esquire
R, Fred Hefelfinger
Elmer L. Rit er
Board of Vie
By
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@,UL 0 8 1998
IN THE COURT OF COMMON PLEAS
Cumberland
OF COUNTY, PENNSYLVANIA
NO. 99- 351 / ~~~ 19 qt
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF RIGHT OF WAY FOR STATE ROUTE
2014, SECTION 019. IN THE TOWNSHIP
OF LOWER ALLEN
EMINENT DOMAIN PROCEEDINGS-IN REM
MEMORANDUM TO PROTHONOTARY
You are hereby informed that notice of the condemnation
effected by the Declaration of Taking filed to the above term and
number on
June 24. 1998
, was recorded in the
office of the Recorder of Deeds of the above county in
Book 179
,Page(s) 1014
The condemnation book and page number, file number, or
microfilm number of any plot plan 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
DEI? TMENT OF TRANSPORTATION
BY
Di trict Righ of Way Administrator
Engineering District It 8-0
5. I, Stuart A. Liner, Assistant Counsel, do hereby depose,
swear, and affirm that I am authorized by and do hereby execute
this Petition to Deposit Estimated Just Compensation on behalf of
the Commonwealth, 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 the penalties provided in 18 Pa. C.S. 54904, relating to
false swearing to authorities.
WHEREFORE, in order to assure possession of the condemnees'
property, if required, by your Petitioner to which it is entitled
under Section 407, of the Eminent Domain Code, 26 P.S. 51-407, your
Petitioner prays that your Honorable Court direct payment of the
aforesaid estimated just compensation and the Commonwealth's pro-
rata share of the taxes on the SUbject property into Court, to be
held until further Order of Court directing payment of said
amount to the said condernnee(s) and/or person(s) entitled thereto
pursuant to, Sections 407, 521 and/or 522, of the said Code, 26
P.S. 5551-407, 1-521 and/or 1-522, as they may apply.
Respectfully submitted,
BY ~ Or .~,-,-._ ,
Stuart A. Liner
Assistant Counsel
ID No. 15290
Commonwealth of PennSYlvania
Department of Transportation
Office of Chief Counsel
9th Floor 555 Walnut Street
Harrisburg, Pennsylvania 17101-1900
Telephone (717)787-3128
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: CONDEMNATION BY TilE NO. q r. 1 ';.~ I C:c..:..f T;._
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF RIGHT OF WAY FOR STATE
ROUTE 2014, SECTION 019, IN
THE TOWNSHIP OF LOWER ALLEN :EMINENT DOMAIN PROCEEDINGS 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,
555 Walnut Street, Forum Place-9th Floor, HarriSburg, PA 17101-
1900, as attorney for the Commonwealth of Pennsylvania,
Department of Transportation, Condemnor in the above-captioned
proceedings.
~::::(-
2'
- ._-\
?1
Stuart A. Liner
Assistant Counsel
Dated: June 19, 1998
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4. The within condemnation has been authorized by a plan
signed by the Secretary of Transportation on April 13, 1998,
entitled "Drawings Authorizing Acquisition of Right of Way for
State Route 2014, section 019 R/W in Cumberland county," a copy
of which plan was filed in the County Recorder's Office in
Cabinet No.3, Drawer No.1, at Page 121, on May 12, 1998.
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
Office, where they may be inspected.
8. The nature of the title hereby condemned is fee simple,
slope easements, and a temporary construction 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
2
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, William D. Pickering, 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 the penalties provided in 18 Pa, C.S. 54904,
relating to false swearing to authorities.
WHEREFORE, fee simple title, slope easements, and a
temporary construction easement are hereby condemned of and from
the properties identified on the attached Schedule of Property
Condemned, as indicated on the plans referenced in paragraph 7
above.
k-;~ 'D. ~
william D. Pickering, P.?) Chief
Right of Way & utility Division
3
~37 111-811
COMMONWEAL TH OF PENNSYLVANIA
OlIpartm.nl' of TflnlPOr1lllon
SCHEDULE OF PROPERTY CONDEMNED
(Decleretion of Taking)
'TYPE OF OESCRIPTION
'~;,...~~
;. "...
, \
~.... ~/
FED. PROJ. NO. 100% State 0- DMd o..rlp1lon
p - Plot pi., lodged for record or flllng with NotiOl
COUNTY Cumbe r land of C~ndemnatjo"
R - Plot pl." now ,.corded or flIed In R.cordl".
CITY.BORQ.TWP. Lower Allen Twp. Offl..
~~SR/SEC 2014-019
NO.
CLAIM
NO.
2104126
3
7
2104128
9
2104129
12
2104132
NAME, MAILING ADDRESS
PROPERTY INTEREST OF CONDEMNEES.
AND LOCATION OF CONDEMNED PROPERTY
Gene A. Delvecchio & Patsy Lee
Delvecchio, H/W
2910 Gettysburg Road.
Camp Hill, PA 17011
ATTACHED "TYPE OF
EXHIBIT
NUMBER
f1FANYj
DE.
SCRIP.
TION
R
Location of Property
Deed Book J-28, Page 460
Lewis B. Buchanan & June F.
Buchanan, H/W
2511 Gettysburg Road
Camp Hill, PA 17011
R
Location of Property
Deed Book M-16, Page 256
Richard B. Thomson and Richard
Wiltanger, Co-Partners
2507 Gettysburg Road
Camp Hill, PA 17011
R
Location of Property
Deed Book H-33-124
As Their Interests May Appear
Louis Zelazny, Jr. & Darlene E.
Zelazny, H/W
1028 Country Club Road
Camp Hill, PA 17011
Location of Property
Deed Book E-33, Page 816
Deed Book E-33, Page 819
R
Continue
..
PLOT PLAN
IIF ANY!
RECORDED IN
Cabinet 3,
Drawer I,
Page 121,
Sheets 1/7-20
Cabinet 3,
Drawer I,
Page 121
Sheets 1/8-20
Cabinet 3,
Drawer 1,
Page 121,
Sheets 1/8-20
Cabinet 3,
Drawer 1,
Page 121,
Sheets 1/8-20
,
':JIf'..437 '11'B1I
.,;
COMMONWEAL TH OF PENNSYLVANIA
OePlMm.ntot TrlnlQOrtltion
SCHEDULE OF PROPERTY CONDEMNED
(Declaration of Taking)
,~..~~
m
~....~..
FED. PROJ. NO. 100% State
COUNTY Cumberland
CITY.aORCHWP. Lowe r Allen Twp.
e.~SR/SEC 2014-019
"TYPE OF DESCRIPTION
o - Coed lloecril'llon
P - PlOI pi", lodgrid for ",cord or nllne with Notice
of C4?ndlmnl'tion
Location of Property
Deed Book 132, Page 126
R - Plot pl,n now rlcorOtd or flied In A.cordtr'1
CHico
NO.
CLAIM
ND.
NAME, MAILING ADDRESS
PROPERTY INTEREST OF CONDEMNEES.
AND LOCATION OF CONDEMNED PROPERTY
Owner Unknown
ATTACHED
EXHIBIT
NUMBER
IIF ANYI
PLOT PLAN
IIF ANYI
RECORDED IN
Cabinet 3,
Drawer 1,
Page 121,
Sheets 1111-21
"TYPE OF
DE.
SCRIP.
TION
24
2104138
R
46
2104154
Drew Miller & Jennifer Miller
1217 Hummel Avenue
Lemoyne, PA 17043
R
Cabinet 3,
Drawer 1,
Page 121,
Sheets 1116-22
"
,
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: CONDEMNATION BY THE NO. f) f. ;)5' 3/ ~..:I ~
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION,
OF RIGHT OF WAY FOR STATE ROUTE:
2014, SECTION 019, IN THE
TOWNSHIP OF LOWER ALLEN :EMINENT DOMAIN PROCEEDINGS 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
Forum Place-9th Floor
555' Walnut Street
Harrisburg, PennsYlvania 17101-1900
(~
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3. The Department of Transportation is authorized by the
'v
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 lesser estate
or interest as it shall determine, in the name of the Commonwealth
for all transportation purposes.
EXHIBIT" A"
4. The within condemnation has been authorized by a plan
signed by the secretary of Transportation on April 13, 1998,
entitled "Drawings Authorizing Acquisition of Right of Way for
State Route 2014, Section 019 R/W in Cumberland County," a copy
of which plan was filed in the County Recorder's Office in
Cabinet NO.3, Drawer No.1, at Page 121, on May 12, 1998.
S. 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
Office, where they may be inspected.
8. The nature of the title hereby condemned is fee simple,
slope easements, and a temporary construction 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
I
2
.,'
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, William D. Pickering, 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 the penalties provided in 18 Pa, C.S. 54904,
relating to false swearing to authorities.
WHEREFORE, fee simple title, slope easements, and a
temporary construction easement are hereby condemned of and from
the properties identified on the attached SchedUle of Property
Condemned, as indicated on the plans referenced in paragraph 7
above.
~'~ 'D. ~
William D. PiCkering, P.?) Chief
Right of Way & Utility Division
3
'",.....&J;' ,I r 1.811
COMMONWEALTH OF PENNSYLVANIA
Oep.lrtmenl of rnn&QOrUllon
SCHEDULE OF PROPERTY CONDEMNED
(Declaration of Taking)
~;,._~~
.., ""''\.
, \
\ l
~.._:::'"..
FED. PROJ. NO. 1007. State
COUNTY Cumberland
CITY.BORa. TWP. Lowe r Allen Twp.
~SR/SEC 2014-019
"TYPE OF DESCRIPTION
D - Dood DoocriPlion
P - Plot pi", lod9td fo, record or ftllnG wilt! Notice
of C,:,n=mnatJon
R - Plot pi", now recon:A.d Of flied In Recorder'.
Offl..
NO.
CLAIM
NO.
2104126
3
7
2104128
9
2104129
12
2104132
NAME. MAILING ADDRESS
PROPERTY INTEREST OF CONDEMNEES.
AND LOCATION OF CONDEMNED PROPERTY
Gene A. Delvecchio & Patsy Lee
Delvecchio. H/W
2910 Gettysburg Road.
Camp Hill, PA 17011
ATT ACHED
EXHIBIT
NUMBE R
f1FANYI
PLOT PLAN
f1F ANY)
RECORDED IN
Cabinet 3,
Drawer 1.
Page 121,
Sheets 1/7-20
'TYPE OF
DE.
SCRIP.
TION
R
Location of Property
Deed Book J-28, Page 460
Lewis B. Buchanan & June F.
Buchanan. H/W
2511 Gettysburg Road
Camp Hill, PA 17011
R
Cabinet 3.
Drawer 1.
Page 121
Sheets 118-20
Location of Property
Deed Book M~16, Page 256
Richard B. Thomson and Richard
Wiltanger, Co-Partners
2507 Gettysburg Road
Camp Hill, PA 17011
R
Cabine t 3,
Drawer 1.
Page 121.
Sheets 118-20
Location of Property
Deed Book H-33-124
As Their Interests May Appear
Louis Zelazny, Jr. & Darlene E.
Zelazny, H/W
1028 Country Club Road
Camp Hill, PA 17011
Location of Property
Deed Book E-33, Page 816
Deed Book E-33, Page 819
R
Cabinet 3'-
Drawer I.
Page 121.
Sheets 118-20
. .
Continue
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. qg - 3 S31 a~litl1
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
OF RIGHT OF WAY FOR STATE
ROUTE 2014, SECTION 019, IN
THE TOWNSHIP OF LOWER ALLEN
:EMINENT DOMAIN PROCEEDINGS IN REM
PRAECIPE TO ENTER APPEARANC~
TO THE PROTHONOTARY OF SAID COURT:
Please enter the appearance of Stuart A. Liner, Assistant
Counsel, Office of Chief Counsel, Department of Transportation,
555 Walnut Street, Forum Place-9th Floor, Harrisburg, PA 17101-
1900, as attorney for the Commonwealth of Pennsylvania,
.
Department of Transportation, Condemnor in the above-captioned
proceedings.
~~ ?1 -2-.
Stuart A. Liner
Assistant Counsel
,
Dated: June 19, 1998
IItmy W. Hhu.uh
AthUllty II> NII.lIUom
Ithllad.~ &: Sinun LU'
One Smull MarLcl SllllMe
P. O.lIux 11.16
Ilarri~hur~, PA 171UH.1146
(717)233.5731
AUumcys(orPctitium:r
,
~
"
"
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION, OF RIGHT
OF WAY FOR STATE ROUTE
2014. SECTION 019, IN THE
TOWNSHIP OF LOWER ALLEN,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
No. 98-3531 - Civil Term
PROPERTY OF RICHARD B.
THOMSON AND RICHARD
WILTANGER. CO-PARTNERS,
: EMINENT DOMAIN PROCEEDINGS IN REM
Plaintiffs
Claim No. 210412900
PETITION FOR THE APPOINTMENT OF A BOARD OF VIEWERS
TO THE HONORABLE JUDGES OF THE SAID COURT:
Richard B. Thomson and Richard Wiltangcr, Co-Partncrs, (thc "Condcmnecs"), by their
Attorneys, Rhoads & Sinon LLP file thc within Petition for thc Appointmcnt of a Board of
Viewers as follows:
1. On Junc 24, 1998, Condemnees were thc owners in fce simple of real property
located at 2507 Old Gettysburg Road, Lower Allen Township, Cumberland County,
Pennsylvania (the "Property").
2. On .Iunl: 24. 1l)C)N, tIll: Commonwl:alth or Pl:nnsylvania, al:ting through Ihl:
Dl:partnwnt or TrnnspOl'tation (ihl: "COndl:I11IJOr"), lill:d or rl:l:ord a /)~daration or Taking with
rl:spl:ct to a spl:dlicd portion or Ilw Propl:rty idl:nti/il:d as Claim Numbcr 2104129. No
preliminary objl:ctions to till: Dcciaration of Taking have b~l:n liled. TIll: Dedaration of Taking
is atladlCd heMo as Exhibit "N'.
3. The specil1ed portion of the Properly made thc subjcet of the Declaration or
Taking is more completely describcd as shown on thc Schcdulc of Propcrty Condcmncd altached
to thc Dcclaration of Taking.
4. Thcrc arc no othcr condemnees known 10 thc Condcmnces to have an intcrest in
the Property.
5. The Orthopaedic Surgeons of Ccntral Pcnnsylvania, Ltd. ("OSCP") Pension Plan.
located at 2800 Grecn Street, Harrisburg, Pennsylvania, has an interest in thc property as a
mortgage holder.
6. By virtue of the Declaration of Taking. Condemnor condemned the specified
portion of the Property madc the subject of the Declaration of Taking, obtaining a fee simple
title, slope easements and/or tcmporary construction casemcnts.
7. The Condcmnccs and thc Condcmnor have been unable to agree upon the just
compensation for the damagcs to thc Propcrty incurrcd by the Condemnees by reason of the
aforesaid condcmnation by the Condcmnor.
2
CrmTlFrCATE OF srmvrCl<:
I hereby certi fY that 011 this 10 Ii, day of Au Cj 11':.>;-
- ,
. 1999, a true and correct copy
of the foregoillg Petition for the Appointment of a Board of Viewers was served by means of
United States mail. first class, postage prepaid, upon the f(lllowing:
Stuart A. Liner
Assistant Counsel
Office of Chief Counsel
Department of Transportation
555 Walnut Street, 9'" Floor
Harrisburg, PA 17101-1900
--[-'1,/2
COMMONWEALTH OJlI'ENNSYLVANIA
DEPARTMENT Of' TRANSI'ORTAT/ON
OFFICE OF C"'EII COlJNSEL
Stuorl A. Lincr
A";'lollt Cnllnscl
Righi nr WlI~' Scclinll
SnprClI1I' Cnnrll.ll. IIIS2911
J1n,'nIllPloCI'_9'" Flnnr. SSS Wlllllnl SIr'I'I'1
!lARRISIll/RG, PENNSYLVANIA 171lll-191lfJ
(717) 787-.1128
IN THE COURT OF COMMON PLEAS OFCUMIlERLAND COUNTY. PENNSYLVANIA
IN RE: CONDEMNATION IlY THE
COMMONWEALTH OF PENNSYL-
VANIA. DEPARTMENT OF
TRANSPORTATION. OF RI(iHT OF
WAY FOR STATE ROUTE 2014.
SECTION 019. IN THE TOWNSHIP OF
LOWER ALLEN
NO. lJX-.1S.11 Civil Tcrm
LOUIS ZELAZNY. JR. AND
DARLENE G. ZELAZNY
PlainlilT.,
v.
COMMONWEALTH OF PENNSYL VANIA.
DEPARTMENT OF TRANSPORTATION.
Dclcndanl
PRAECIPE
TO THE PROTHONOTARY:
Kindy cntcr my appcarancc on bchalf ofthc Commnllwcallh of Pcnnsylvania. Dcpartmcnt of Trans pOri at ion.
Dcfcndant in Ihc abovc-caplioncd mallcr.
~::;t q ~
Stuart A. Lincr
Assistant Counsel
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J)I~PARTMENT OF TRANSPORTATION
OFl1ICE OF CIIIEF COUNSEL
Chl'i,~ll/phe,. J. Clemelll.\', A.~.I'i.I'I(/1I1 CIIIIII.I'd ill-ChCIIXe
RiKhll!!, Way See/iI/II
Sapl'eme CIIIII'II./). #44699
555 WALNUT STREET--9T/J nOOR
IIARRISBURG, PENNSYLVANIA 17101-1900
(717) 787-3128
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYL VANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION.
OF RIGHT OF WAY FOR S.R. 2014,
SECTION 019, IN THE TOWNSHIP OF
LOWER ALLEN
CIVIL ACTION _M LAW
RICI-IARD B. THOMPSON AND
RICHARD WILTANGER, CO-PARTNERS
No. 9R-3531- Civil Term
Plaintiff
v.
COMMONWEALTH OF PENNSYLVANIA.
DEPARTMENT OF TRANSPORTATION,
EMINENT DOMAIN
PROCEEDINGS -- IN REM
Defendant
TO THE PROTHONOTARY:
PRAECIPE
Kindly enter my appearance on behalfofthe condemnor, Commonwealth of
Pennsylvania. Department of Transportation, the de/cndant in the above-captioned matter.
EL
Attorney for the Dclcndant
IN TilE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COI\IMONWEALTII OF PENNSYLVANIA
IN RE: CONDEMNATION BY TilE
COMMONWEALTH or PENNSYLVANIA.
DEPARTMENT or TRANSPORTATION.
OF RIGHT-OF-WAY FOR S.R. 2014,
SECTION 019.IN THE TOWNSHIP or
LOWER ALLEN.
CIVIL ACTION -- LA W
RICI-IARD B. THOMPSON AND
RICHARD WILTANGER. CO-PARTNERS
Plaintiff
No. 9R-3531- Civil Term
v.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORT A TION.
EMINENT DOMAIN
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 servicc satisfics the requirements ofPa.R.C.P. 440:
BY FIRST CLASS MAIL:
Henry W. Rhoads. Esquire
Dauphin Bank Bui]ding 12'11 Floor
One South Market Square
P.O. Box 1 ]46
Harrisburg. I' A 17108-1146
Respectfully submittcd.
Attorney for thc Defendant
DATED: October 6, ] 999
6. Condemnees demand a jury trial.
Dated: I 2.. ::Tv L 0rJ
( /
Respectfully submitted:
COYNE & COYNE, P.C.
By:
l>.1l~ CJ
isa Marie Coyn Esquire
3901 Market Street
Camp Hill, PA 17011-4227
(717) 737-0464
Pa. Supreme Ct. No. 53788
Attorney for the COlldelllllees
IN TilE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
LOUIS ZELAZNY, JR.
AND DARLENE ZELAZNY
PlaiOlil1,
NO. 98.3531
~
f
v.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION
Defendant
CERTIFICATE OF SERVICE
I, Stuart A. Liner, Assistant Counsel for the Commonwealth of Pennsylvania, Department
Of Transportation. docs hereby certify that he did serve a copy of the Motion in Limine and Brief for the
Defendant in the above-captioned matter UpOIl eoullsel for Louis Zelazny, Jr. and Darlene Zelazny, by
Mailing same, First Class Mail on March 1,200 I to:
Lisa M. Coyne, Esquire
390 I Market Street
Camp Hill, PA 17011-4227
~t;~j t( /~
Stuart A. Liner
Assistant Counsel
ID No. 15290
Commonwealth of Pennsylvania
Department of Transportation
Office of Chief Counsel
Harrisburg, P A 17120
717-787-3128
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DATED: March 1,2001
4
1118
LOUIS ZELAZNY, JR., and
DARLENE ZELAZNY,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Defendant
98-3531 CIVIL TERM
PRETRIAL CONFERENCE
At a pretrial conference held January 15, 2003,
before Edward E. Guido, Judge, present for the Plaintiff was Lisa
Marie Coyne, Esquire, and for Defendant, Stuart A. Liner, Esquire.
This is a condemnation case that the parties agree
will take approximately 2 days to try. Both parties are
requesting a view of the premises which will encompass one half
day.
Neither the Commonwealth attorney nor its expert is
available for trial during the February term. Therefore, without
objection from the Condemnees, this matter is continued to the
March term. The Court Administrator is directed to relist it.
Both counsel are deemed to be attached to this Court
for the March term. No further continuances will be granted,
absent an emergency.
The Commonwealth has just filed a motion in limine.
The condemnees indicate that they intend to respond. This matter
shall be addressed to the trial judge.
Settlement does not appear to be likely. The demand
is at
The offer
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Louis Zelazuy, ,Jr., lInd
Darlene E. Zelnzn)',
Condelllnecs
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: IN TilE COURT OF COi\IMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
\'s.
: CIVIL DIVISION - LAW
Department of Transportation,
Commonwealth of Pennsyl\'ania,
Condemnor
: NO. 98-3531 CIVIL TERM
: IN REM (EMINENT DOMAI")
COKDDEi\lNEES' PRETRIAL MEMORANDUM
PURS,-\='T TO LOCAL RULE OF COURT NO, 212.4
I. Statement of Facts as to Liabilitv
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On June 24, 1998 the Department of Transportation (hereinafter "Penn DOT") filed a Declaration
of Taking against Mr. and Mrs. Zelazny concerning their investment property located and known as 2800
Gettysburg Road, Lower Allen Township, Cumberland County. The taking was for the widening of the
Gettysburg Road in Lower Allen TO\\l1ship.
With the taking, PennDOT acquired 5,186 square feet of Mr. and Mrs. Zelazny's property, whieh
consists of 36 feet deep of combined right-of-way and slope easement along 180 feet frontage of their
property. Because this is an eminent domain proceeding, liability of the Comdemnor is not in dispute.
Article XVI, Section 8 of the Pennsylvania Constitution provides, iI/leI' alia, that condemnors shall
"make just compensation for property taken, injured or destroyed." Further, Article I, Section 10 of the
Pennsylvania Constitution prO\ides that, "nor shall private property be taken ... to public use, without
authority of law lInd without just compensation being first made or sccured." Sce also generally,
Eminent Domain Code, 26 Pa. S 1-60 1.
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II. Stalelllent III' Facls as III Ilallla!!e,'
Thc taking involved in this highwny improvemcnt project rcndcred a onec two-thirds of an acrc
prime commercinl corncr property to a mere one-tcnth of an acre property. The taking in this case was
the front footage on a double lot nnd was the flnUest, 1110st valuable portion of the property given the
property's existing topogrnphy. The portion of the property ncquired in thc propcrty was the most
dcvclop-able portion of the property not only becausc it had existing direct access upon Gettysburg Road
but it also allowed a potential buycr the greatcst flexibility in developing the property. The usable and
developable areas were also reduced to one-sixth of the prior usable area. Given the highest and best use
of the property as commcrcial use. there nre overall direct and indirect damages which relate to a per
square 1'001 basis.
Additionally, Mr. and ~Irs. Zelazny lost the ability to rent their property for the eleven months
while the construction was underway. Their property was also used as a construction easement for which
they were not compensated. Lastly, upon determination of damages, Mr. and Mrs. Zelazny are also
entitled to delay damages. which are awarded at the Commercial Loan Rate to be determined and
assigned by the Court post jury verdict. Delay damages flow from November 23,1998.
III. Issues III' Liabilitv and Damaees
Liability and damages issues concem the area taken, the highest and best use of the property, and
the loss in valuation (i.e. damages) to the property as a result of the taking. After the Board of Viewer's
Decision was issued, PennDOT obtained a new appraisal of the property on March 12, 2001 which
appraised damages to be 545.000.00 rather than the 531,000.00 originally testified to by PennDOT's
appraiser at the Board of View proceedings. The Board of View issued their report on June 13, 2000 and
awarded damages in the total amount of 552,650.00.
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COMMONWEM.'fH Of nNNSYI,VANI1t.
DEPAATMtNr OrllU,NSPORTAT!ON
OmCE OF CHIEF COw,'SE!.
'fAX COVLRSHI:I:T
Dale _110 !oJ
To tUf<. /1. ~YJ1,Q..
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Location r 4 >v " ';.;.,. II
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f )t:rf--. L.,~r.-a..
Number of Pases ' '~'
. (including cover sh~t) ,
Fax Number
From
,If you do not recei,'e aU the
Indicated plI$es clearly,
plea3e contact the sender at
' (717) .
"
cONFlDEN'IIAIily NOTE
The inlonn.tion and d~~ IltCOlnl>U1yins this tran.inIuion contain info1'llL!.tion,frt,m the Offi"" of
Chief Coumel, which i. =F.dtntW and/or legll1l,y privllesed. The infc>nnaliOl1f! intended "'ldy lor the
UJe of lh. individual or ~Cly r..uned on this lransnti.sJiori .heet:. If you .sre not the desigultd m;pient,
)'OIl are hereby noliiied thr. illY disclosure, copying, diStribution or ulcing 01 any ""lion ill nUa"cc on '
tile content. 'of this infCll'lllJticn is prohibited. '
MESSAGE
------_.._-------------------~--~-----~------~--------------~----._--._----
---------------~---_._--------~~--------------------------------------.----
---------------------------------------------------------------------------
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.................. -.............. -...... --..... -:"...... ......... -:.. - - -.. - ...---- -.. - -- - - ----- -- -- ----.. - ---.... - .
. ,
OVERNIGHT MAlLlNG ADDRESS
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REGULAR MAI~G ADDRESS
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. Office of Chief Counsel Office of Chief Coun3e1 '.' ,
PennDOT '.' PeMDor . ' ,
' 400 North Street - 9ih Floor ': " Port Office Box 8212. .,., '
Harrisburg; PA 17120-0096. ' ' ,.' Harrilburg, PA 17105-8212 . "
; "'. . .'.;, - . ,...... . '. -: ~":-.~ '. :.' '. .:." '. .;.'. .:.~' ,- '-'. .'. '.. - -: ,. .
MainOfficcTelcphone~uinber.(7I7)787~3,473 ,.'.:.. .....
Office Fax~umber (71 n 772-2741 "
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2. PLAINTIFFS MAY NOT OFFER EVIDENCE
OR TESTIMONY AS TO ANY LOSS OF INCOME
AS A RESULT OF THE TAKING
Many things may be considered as clements of damages, however, no damages
may be considered with reference to the income generated on the property. The pivotal
inquiry is as to much the property, as it was when condemned, was diminished in value.
Citv of Philadelohia v. Linnard, 97 Cmwlth. Cl. 242, 247 (198 I); Sgarfat v. Commonwealth,
398 Pa. 406, 409-10,158 A.2d 541,543 (1960). The e1aim of/ost income by the Plaintiffs
is not compensable.
Respectfully submitted,
pC;~::;( c1 J~___
Stuart A. Liner
Assistant Counsel
ID No. 15290
Commonwealth of Pennsylvania
Department of Transportation
P.O. Box 8212
Harrisburg, PAl 7105-8212
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II. Statcmcnt of Facts as to /)amlll!CS
Thc taking involved in this highway improvement project rendered a once two-thirds of an acre
prime commercial corncr properly to a mcre one-tenth of an acre properly. The taking in this case was
the fronl footage on a double lot and was the Ilallest, most valuable portion of the property given the
property's exisling topography. The portion of the property acquired in the property was the most
develop-able portion of the property not only because it had existing dircct access upon Gellysburg Road
but it also allowed a potential buyer tbe greatest nexibility in developing the property. The usable and
developable areas were also reduced to one-sixth of the prior usable area. Given the highest and best use
of the property as commercial use, there arc overall direct and indirect damages which relate to a per
square toot basis.
Additionally, Mr. and Mrs. Zelazny lost the ability to rent their property for the eleven months
while the construction was underway. Their property was also used as a construction easement for which
they were not compensated. Lastly, upon determination of damages. Mr. and Mrs. Zelazny are also
entitled to delay damages, which are awarded at the Commercial Loan Rate to be determined and
2
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assigned by the Court post jury verdict. Delay damages now from November 23, 1998.
III. Issues of Liabilitv and Damal!cs
Liability and damages issues concern the area taken, the highest and best use of the property, and
the loss in valuation (i.e. damages) to the property as a result of the taking. After the Board of Viewer's
Decision was issued, PennDOT obtained a new appraisal of the property on March 12, 2001 which
appraised damages to be $45.000.00 rather than the $31,000.00 originally testified to by PennDOT's
appraiser at the Board of View proceedings. The Board of View issued their report on June 13,2000 and
awarded damages in the total amount of $52,650.00.
IV. LCl!allssues Rel!ardinl! Admissihilitv ot'Testimonv and Exhihits
Nonc Known to Condcmnccs.
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V. Witncsses
(I) Mr. and Mrs. Zclazny - propcrty owncrs.
(2) Bill Rothman - cxpcrt appraiscr.
VI. Exhihits
(I) Condcmnccs may usc photographs as prcscntcd during Board ofVicw. Photographs arc
of thc propcrty at issuc.
(2) Plan ofTaking.
(3) Vicw of Prcmiscs is rcqucstcd.
VII. Scttlemcnt Nel!otiations
Condcmnees havc received payment of $31,000.00 on August 15, 1998 from PennDOT. There
has bcen no offer from PennDOT until this date per the attached memo, dated January 10, 2003.
(Exhibit "An.) The undcrsigned has not, as of the time of submission of this memorandum, had an
opportunity to review the settlement offer with Mr. and Mrs. Zelazny.
Respectfully submitted,
COYNE & COYNE, P.C.
Dated:
I cp ::rAN t/J3
sa Marie Coyne, Es uire
a. S. Ct. No. 53788
Henry F. Coyne, Esquire
Pa. S. Ct. No. 06250
390 I Market Street
Camp Hill. PA 170114227
(717) 737-0464
Attol'lleysfor COlldelllllees
3
The defendllnt filed 1I Deelllnltion ofTlIking on June 24, 1998 condemning 3338
squllre feet in Ice lInd 1I slope ellsement 01'1848 squllre leet.
The plllintiffs filed 1I1'etition lllr Appointment of BOllrd of Viewers lInd the viewers
were lIppointed by this Honorable Court on August 9, 1999. The site view WllS held
on December ]4,1999. The viewers' hellring was held on Janullry 20,2000. The plllintirtS offered the
testimony of William F. Rothman, a qualified valuation expert, liS to damages in the amount of
$75,000.00. The defendant offered the testimony of Lynn Carroll, a qualified valuation expert,
as to damages in the amount 01'$31,000.00.
On June 13,2000 a report of viewers was filed awarding the plaintiffs damages in the
amount 01'$52,650.00 that included $45,000.00 for the taking of the subject property, $6,000.00
for lost rent, and $1,650.00 for use of the property for parking and storage of construction vehicles.
The plaintiffs appealed on or about July] 2,2000 and the defendant appealed the specific award
of damages of $6,000.00 for lost rent and $1,650.00 for use of the subject property for parking
and storage of construction vehicles.
II. STATEMENT OF ISSUES:
The amount of just compensation to be awarded to the plaintiffs for the taking, injury,
or destruction of their property, determined as set forth in the Eminent Domain Code, 26 I'.S.
111-101 et seq.
2
,
DARLENE E. ZELAZNY,
Plaintiffs
vs.
: NO. 98-3531 Civil Term
COMMONWEALTH OF I'ENNSLVANIA,
DEPARTMENT OF TRANSPORTA TroN,
Defendant
: CIVIL ACTION-- IN REM
: EMINENT DOMAIN PROCEEDINGS
ORDER
AND NOW THIS,
~ 7Y^
day of
F~ it"
, 2003, upon
consideration of Plaintiffs' Motion for a Continuance and the fact that Defendant does not oppose this
Continuance, the Motion for a Continuance is GRANTED. This case shall be removed from the list of
cases to be tried the week of March 10,2003.
The Parties are directed to re-list this matter for trial.
B
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11
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Edward E. Guido, Judge
CF:
Lisa Marie Coyne, Esq.
For Plaintiff
Stuart A. Liner, Esq.
For Defendant
"UfLr.:,
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/lVl-u.<..l< .-L .< '"
Court Administrator
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COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
OFFICE OF CIIIEF COUNSEL
Donald J. Smith. A.\'.\'l,tant ClIun.,,1
Right 'if Way S,oetion
Supreme ClIurt/,D. #50483
400 North Slrccl- 9" FIr.
P. 0, Box 8212
HARRISBURG, PENNSYLVANIA /7105-8212
(717) 705./277
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. 2014, SECTION
019, IN THE TOWNSHIP OF LOWER ALLEN
CIVIL ACTION-LAW
LOUIS ZELAZNY, JR. and
DARLENE E. ZELAZNY,
Plaintiffs
v.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
No. 98-353 I
Defendant
EMINENT DOMAIN
PROCEEDINGS-IN REM
PRAECIPE FOR SUBSTITUTION OF COUNSEL
TO THE PROTHONOTARY:
Praecipe for Entry of Appearance
Kindly enter my appearance on behalf of the Commonwealth of Pennsylvania,
Department of Transportation, Condemnor/Defendant in the above captioned matter. I hereby
certify that this change is not intended to, nor will it, delay this proceeding to the best of my
knowledge, infonnation and belief.
Papers may be served at the address set forth above.
Respectfully Submitted,
OFFICE OF CHIEF
DATED: June 3,2003
By:
Donald J. Smith
Assistant Counsel
1
CASE NO.:
(..tJf 1/:' -:ZtJ .I" <<.7.-" ?Ie l(fltl'j':W r.J /)1
DOCKET NO.: ----2.9- 353/ (',;//
J,()
Judge _ Clcrk/l'rolh _ ~'I.rr .I
COURTROOM NO.: "
vs -.C"''''''nl.u~.,il/, Il f pfJ ~~; d7fb115
DATE: f 7-03
3 Day"
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lurnr II Name f{.1I1dolt1 No.
n Chubb, IOlH ^ -1982526589
, 16 Doren, Robert ^ I I' -1769270849
-
.\ 33 Shambaugh, Rvan M -1699540058
-I 25 Crum, Marl' E -1658811 01 7
5 24 Kitzmiller.. Maggie B -1656933618
I, 21 Riordan, William I II' -1 585038880
1t1. P""'r:'ln"1 rl~''''leo c:: -'1?12,774-"1 1T ?t:. '" ~
..:.:- 18 Dv~ !,,;, t JUIU L 120"997183 7r Q't. :&~
') 20 Dirgo, Michael G -1201417285
III 38 Lick, William R II' -1164831243
II 10 Palovitz, Marc ^ -1093603699
12 29 H(lgcl'ich, Walter Hat'!'\, -953802758
-!C' 2 D'/~Il;l;v, rvliLI....d \'31085838 ..,,- '/r... "-/
14 3 Phillips, Claudia ^ -809565621
15 30 Bowermaster. Cynthia ^ -554812685
II, 11 Lopienski,lonathan -481518390 :Jf ?t 1J:. ?
p 36 rbI., t.1argie fa -'1'17~'1 1;68
I:; --,S Lis, Barb", a I -98665'Hl3--} %-
1<) 40 Hickoff, Roger N 95625515
w lS ~klUlI E\.lH"ll\.1 1731H694- AF,,~..,.sE:
:; 13 Z'lLk, fV.:H.......1. r 'Jlloh5Q{lQ'J
" 23 CI,dl" Rid:~.!J f 345468001 .4 ~
" 2" Callil.3, ,^.3hs\ I 680612810
24 7 Regan, Patricia M 879772935
25 13 Hassinger, Michele 881506312
2() 34 Walke!', Troy A 1084332079
27 6 Girton, David A 1129288414
2K 32 Krebs, John R 1333134937
29 17 Singer, Alvert C II' 1562622100
30 1 Meas, David 0 1851513365
~! 9 Brenizer, leffrey W 1954573372
J2 31 Moyer, Eleanor S 1989586616
.1.1 28 Smith, Jesse R 2050894973
3-1 4 Rauen, Janet C 2086848816
J5 39 Rueger, Ryan 2141714962
Monday. July 07, 2003 Pagelofl