Thomas A. McElwee & Son, Inc. v. Southeastern Pennsylvania Transportation Authority

DISSENTING OPINION BY

Judge PELLEGRINI.

Based on the facts as found by the trial court, I respectfully dissent from the majority’s holding that Thomas A. McElwee & Son, Inc. (Property Owner) established that they were denied sufficient access to its property necessary to establish a temporary de facto taking had occurred. I dissent because in reversing the trial court, the majority applies the incorrect legal standard as enunciated by our Supreme Court, and even applying that incorrect legal standard, a de facto taking was not proven based on the factual findings made by the trial court.

Southeas…