Stein v. Commonwealth

24 Pa. Commw. 524 (1976)

Russell P. Stein, Trustee
v.
Commonwealth of Pennsylvania, Department of Transportation, Successor to Department of Highways. Commonwealth of Pennsylvania, Appellant.

No. 1380 C.D. 1974.

Commonwealth Court of Pennsylvania.

Argued April 8, 1976. May 19, 1976.

Argued April 8, 1976, before Judges CRUMLISH, JR., MENCER and ROGERS, sitting as a panel of three.

Roger T. Shoop, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellant.

Edward Jay Weiss, for appellee.

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.