Truck Terminal Realty Co. v. Commonwealth , 486 Pa. 16 ( 1979 )

OPINION

NIX, Justice.

The facts presented in this appeal are undisputed.- The appellant owns a parcel of land in Harmar and Indiana Townships, Allegheny County which is used as a truck terminal. The property does not abut on any public thoroughfare, except the Pennsylvania Turnpike, to which there is no access along appellant’s frontage. The only access to this parcel is by means of a right-of-way over abutting lands to Legislative Route 679. The Commonwealth filed a declaration of taking by which it condemned a portion of appellant’s right-of-way and raised the grade of Route 679. It is conceded that appellant is entitled to be compensated for the damages resulting from the* changing of the grade of the road. The dispute arises because appellant does not assert as its principal damage the taking of a part of the right-of-way or the elevation of the road grade. To the contrary, appellant seeks compensation for the impediment to its access during the construction period. As a result of the construction, access to the portion of Route 679 south of appellant’s right-of-way, required vehicles entering and leaving appellant’s parcel to travel 14 miles farther in each direction to reach the main highway system. It is asserted that this temporary inconvenience imposed upon appellant caused additional out-of-pocket costs in the form of salaries, gas, oil and additional wear and tear on the vehicles involved.

Appellant contends that section 606 of the Eminent Domain Code¹ authorized as compensable damages in connection with the taking its out-of-pocket expenses resulting from the closure of Route 679 during the year-long course of construction activity.² The appellant urged the Court of Common Pleas of Allegheny County to construe section 606 of the Code, when read in conjunction with the pertinent part of section 602 of the Code,³ to allow the Court of Common Pleas to take into account, in appraising the fair market value of the land after a partial taking, evidence concerning the diminution in its fair market value due to the temporary loss of direct access to Route 679. The Court of Common Pleas accepted appellant’s interpretation of the statute, modified the Board of Viewers’ report in the instant case, and ordered that, at trial, the impact upon appellant’s property of the physical closing of Route 679 during the construction period should be an element to be considered, together with all other proper elements, in determining the fair market value of appellant’s property immediately after the condemnation. The Commonwealth Court reversed the order of the Court of Common Pleas insofar as it provided that the impact of the highway’s closing during construction was to be considered a factor in determining appellant’s damages.

The question presented for decision is, therefore, whether the language of the statute warrants compensation for temporary deprivation of right of access to a road necessitated by public construction, changing its grade where a partial taking has been effectuated. Under established Pennsylvania law, the accrual of damages for loss of access resulting from a change in the grade of a public street or road does not constitute a taking of property within the meaning of the Constitution absent an express statutory enactment providing for the payment of such damages. McGarrity v. Commonwealth, 311 Pa. 436, 439, 166 A. 895, 896 (1933). This common law rule,⁴ to which Pennsylvania adheres, has been held compatible with the dictates of the Federal Constitution. Delaware River Commission v. Colburn, 310 U.S. 419, 60 S.Ct. 1039, 84 L.Ed. 1287 (1940). The Eminent Domain Code expressly authorizes the recovery of consequential damages, whether or not any property is taken, when there is a “permanent interference 'with access thereto.” Eminent Domain Code, Section 612 (emphasis added).⁵ In interpreting and applying the “before and-after” measure of damages now codified in section 602 of the Code, Pennsylvania courts required a showing of a permanent injury or deprivation of property rights to establish entitlement to damages in an eminent domain proceeding. Perla v. Commonwealth, 392 Pa. 96, 139 A.2d 673 (1958); Cox v. City of Philadelphia, 107 Pa.Super. 455, 164 A. 95 (1933). As the Court once observed in a comprehensive discussion of early Pennsylvania authorities on the application of the “before and after” rule:

The cases almost uniformly hold that damages cannot be recovered for inconvenience in the transition of business . caused by the work of making a public improvement; that this temporary inconvenience, and all losses therefrom, must be suffered, for the law permits a recovery only of the permanent depreciation in the value of property taken or injured . . . such depreciation to be judged by the effect of the improvement when completed. Iron City Auto Co. v. Pittsburgh, 253 Pa. 478 at 493, 98 A. 679 at 684 (1916).

Accord 2 Nichols on Eminent Domain, § 36.11 n.6.

Appellant contends that this settled rule of the incompensability of temporary interference with rights of access has been changed relying upon an excerpt of the Comment to section 606 which reads as follows:

In determining the fair market value of the remaining property, consideration should be given to the necessary time discount, inconvenience and other effects of the construction period, which might materially affect the price which the condemnee would receive if he were to sell the remaining property to a third party immediately after the day of condemnation, but before completion of the improvement. .

This language, which is far from being direct authority for the proposition advanced, must be considered in light of the following which appears thereafter in the same comment:

. It is also the purpose of this section to provide, in accordance with existing law, that general benefits and damages which accrue to the community as a whole are not to be considered in arriving at the after value. Only special, particular and direct benefits and damages to the remaining property may be considered in arriving at the after value. .

Thus, even assuming arguendo that the words of the statute as supplemented by a comment whose soundness has been questioned⁶ support appellant’s interpretation, the question remains whether appellant has suffered special, particular and direct damages resulting from temporary loss of direct access to Route 679 as differentiated from the general damages which “accrue to the community as a whole” as a result of the construction. Pennsylvania RR Co. v. Marchant, 119 Pa. 541, 13 A. 690 (1888); Pennsylvania RR Co. v. Lippincott, 116 Pa. 472, 9 A. 871 (1887).

Since there was no cause of action at common law for the temporary deprivation of access caused by the work of making a public improvement, such temporary inconvenience not being deemed to constitute a “taking” of a property right, Iron City Auto Co. v. Pittsburgh, supra; Pennsylvania RR Co. v. Marchant, supra, appellant’s contention boils down to the proposition that the legislature intended to create a compensable property right hitherto unknown to Pennsylvania law by the following language:

In determining the fair market value of the remaining property after a partial taking, consideration shall be given to the use to which the property condemned is to be put and the damages or benefits specially affecting the remaining property due to its proximity to the improvement for which the property was taken. Eminent Domain Code, Section 606.

This section of the Code is not mentioned in the comments to Section 602 as are the others which add items of damage to those recognized by existing case law. When the legislature wished to overrule existing case law by imposing new liabilities on the Commonwealth, it did so expressly, as in section 612, which authorized consequential damages for permanent interference with access. See note 5, supra. Should we construe the language of section 606 to expand the Commonwealth’s liability to include temporary deprivations of access, it would necessarily follow that its language would also cast a cloud on the continuing vitality of those cases holding that “damages” do not include loss from diversion of traffic, Lenhart v. Commonwealth, 345 Pa. 528, 29 A.2d 22 (1942); that certain items are too “remote and speculative” to be considered “damages”;⁷ or that the possibility of negligent operation of the improvement is not admissible in determining damages, Lamont v. West Penn Power Co., 300 Pa. 78, 150 A. 155 (1930). See Snitzer, Pennsylvania Eminent Domain, pp. 339-340 (1965).

The actions of the governmental agency, PennDOT, must fall into two distinct categories: the exercise of eminent domain power, which requires just compensation; and the valid exercise of the police power, not requiring compensation. Wolf v. Department of Highways, 422 Pa. 34, 220 A.2d 868 (1966). See generally F. Bosselman, The Taking Issue (1973). Temporary interference with road access falls under the noncompensable, exercise of the police power necessary to effectuate public improvement, unless the alleged interference was accomplished in an arbitrary or unreasonable manner. Wolf, supra; Commonwealth v. Hession, 430 Pa. 273, 242 A.2d 432 (1968).⁸

When confronted with questions of statutory construction, this Court has repeatedly held that the words of a statute are to be interpreted in light of the antecedent case law. Tarlo’s Estate, 315 Pa. 321, 172 A. 139 (1934). Thus, legislative intent to effectuate a drastic change in the law is not to be inferred by mere omission and implication. Young v. Kaye, 443 Pa. 335, 279 A.2d 759 (1971). Indeed, when sections 606 and 612 are read together, we can see that when the legislature intended to change the established policy of our law by authorizing consequential damages for a permanent deprivation of access, it did so in express language. See Miles’ Estate, 272 Pa. 329, 116 A. 300 (1922). Section 602 detracts from rather than adds to the force of appellant’s urged construction in that the Comments thereto speak of a “codification” of existing case law which, as previously discussed, denied that temporary deprivation of access during the course of construction of a public improvement gave rise to damage claims. Perla v. Commonwealth, supra; Cox v. City of Philadelphia, supra.

To interpret section 606 as intending other than a codification of existing case law would compel this Court to address itself to the issue of whether the title of the Eminent Domain Code was sufficiently expressed to provide notice that a new burden of damages was imposed upon the Commonwealth by reason of its enactment — a question which, under our prior case law, is of Constitutional dimension. McGarrity v. Commonwealth, supra; Snitzer, supra at 362-63. In view of all of the aforementioned considerations, we are satisfied that section 606 was not intended to effectuate the change in prior law as urged by appellant. We therefore hold that the general common law rule denying the compensability of temporary loss of access is still the prevailing law of this jurisdiction.

The order of the Commonwealth Court is affirmed..

LARSEN, J., did not participate in the consideration or disposition of this case. MANDERINO, J., filed a dissenting opinion.

1 . Act of June 22, 1964, Special Sess., P.L. 84, art. VI, § 606, 26 P.S. § 1-606 (Supp. 1978-79). Section 606 provides:

Effect of Condemnation Use on After Value. In determining the fair market value of the remaining property after a partial taking, consideration shall be given to the use to which the property condemned is to be put and the damages or benefits specially affecting the remaining property due to its proximity to the improvement for which the property was taken. Future damages and general benefits which will affect the entire community beyond the properties directly abutting the property taken shall not be considered in arriving at the after value. Special benefits to the remaining property shall in no event exceed the total damages except in such cases where the condemnor is authorized under existing law, to make special assessment- for benefits.

2 . Appellant does not contend that he is entitled to consequential damages pursuant to Section 612 of the Eminent Domain Code. 26 P.S. § 1-612 (Supp. 1978-79). Its position is that the damages sought are not consequential but direct.

3 . Section 602. Measure of Damages. Just compensation shall consist of the difference between the fair market value of the condemnee’s entire property interest immediately before the condemnation and as unaffected thereby and the fair market value of his property interest remaining immediately after such condemnation and as affected thereby, and such other damages as are provided in this code.

4 . McQuillen, Municipal Corporations, § 32.32 (3d ed.).

5 . Section 612 provides in full:

All condemnors, including the Commonwealth of Pennsylvania, shall be liable for damages to property abutting the area of an improvement resulting from change or grade of a road or highway, permanent interference with access thereto, or injury to surface support, whether or not any property is taken. 1964, Special Sess., June 22, P.L. 84, Art. VI, § 612.

6 . Snitzer on Pennsylvania Eminent Domain, § 606-1.32 (1965):

The Comment notes indicate that there has been an enlargement of fair market value immediately after the taking to include “the necessary time discount, inconvenience, and other effects of the construction period. . . .” This would seem to indicate that the language was intended to change existing law in this regard. The Comment note must be taken with some reservation.

7 . Snitzer on Pennsylvania Eminent Domain, § 606-1.211 (1965).

8 . Westinghouse Air Brake Co. v. Pittsburgh, 316 Pa. 372, 176 A. 13 (1934) is not inconsistent with the above rule, since under the facts of that case the public construction project in issue was unreasonably prolonged.