Molmen v. Commonwealth
Molmen v. Commonwealth
Opinion of the Court
Opinion by
This is an appeal from the dismissal of preliminary objections in an eminent domain case.
Appellant, Eva Molmen, is the owner of a bar and restaurant situate at the northwest corner of Delaware Avenue and Arch Street, known as 100 and 102 North Delaware Avenue, in the City of Philadelphia. The Commonwealth’s Department of Transportation has condemned the appellant’s entire property for the right-of-way of Legislative Route 1000, known as the Delaware Expressway, including six feet to be used for roadbed, 33 feet for an embankment supporting the elevated road, 15 feet for a maintenance strip, and a
The appellant contends that the Department is shown to have abused its discretion because the construction of the highway could be established by the construction of a retaining wall instead of the embankment planned by the Department.
Our duty in the review of a condemnor’s actions in the appropriation of property is described in Washington Park, Inc. Appeal, 425 Pa. 349, 229 A. 2d 1 (1967), as follows: “The Secretary of the Department of Highways has condemned the land in question under the statutory authorization contained in the Act of June 1, 1945, P. L. 1242, §210, 36 P.S. §670-210. We have no power to substitute our discretion for his, nor to correct mistaken judgments. Furthermore, it is presumed that the highway department’s officials have performed their duties in good faith; the burden upon the appellant to prove the contrary, that the officials acted in a capricious, or fraudulent manner, or that their actions were based upon private motives inconsistent with the
Two civil engineers testified at the deposition, one for each party. Both agreed that six feet of Mrs. Molmen’s property would be required for the roadbed and that 30 to 33 feet would be needed for the slope of an embankment, if an embankment were to be constructed. They disagreed, however, as to whether a retaining wall placed at the edge of the roadbed could be feasibly substituted for the embankment planned by the Department. The Department’s expert cogently asserted that such a wall would not only be costly,
There is no hint in the evidence of fraud, caprice or improper motive on the part of the Department, and, indeed, the appellant has not alleged such. What the record does reveal is a simple difference of opinion between condemnor’s and Mrs. Molmen’s experts regarding the feasibility of substituting a retaining wall for an embankment. The record far from demonstrating abuse of discretion by the Department contains persuasive engineering support for the plan adopted.
In Winger v. Aires, 371 Pa. 242, 89 A. 2d 521 (1952), cited in appellant’s brief, a school board condemned a 55-acre farm in order to erect a school building which could have been accommodated on 10 acres, with no
Affirmed.
At argument the appellant’s counsel agreed that this remaining 10 or 11 feet would be of no use to his client and should be appropriated if the remainder is decided to hare been lawfully taken.
The appellant’s contention that the lower court’s order for depositions limited the issue of the case to the question of the physical possibility of building the road without taking more than six feet of her property is wholly without merit.
The cost of a retaining wall was estimated at $75,000 and the estimate of just compensation for the appellant’s property was $32,735.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.