Eminent domain — De facto taking — Preliminary objections — Evidentiary record.
1. When preliminary objections are directed to a petition for appointment of viewers challenging the assertion that a de facto taking has occurred, the court must make an evidentiary record and resolve such issue rather than submit it to viewers. [525]
Judge KRAMER did not participate in this decision.
OPINION BY JUDGE CRUMLISH, JR., May 19, 1976:
The procedural question raised by this appeal has been before this Court on innumerable occasions. We have held that the trial court must make an evidentiary record and resolve the issue of a de facto taking raised by preliminary objections, and not submit the issue to viewers. Petition of Ramsey, 20 Pa. Commw. 207, 342 A.2d 124 (1975); Nixon Hotel, Inc. v. Redevelopment Authority of Butler, 11 Pa. Commw. 519, 315 A.2d 366 (1974); Jacobs v. Nether Providence Township, 6 Pa. Commw. 594, 297 A.2d 550 (1972).
Since we have neither the benefit of a trial court evidentiary record nor an opinion, we must remand this matter to the Court of Common Pleas of Philadelphia County for reconsideration consistent with this opinion.
Reversed and remanded.