Opinion
Argued December 6, 1977
March 27, 1978.
Eminent domain — Delay compensation — Public Utility Law, Act 1937, May 28, P.L. 1053 — Eminent domain Code, Act 1964, June 22, P.L. 84 — Legislative intent — Condemnee in possession — Date of condemnation.
1. Although a condemnation is effected under the Public Utility Law, Act 1937, May 28, P.L. 1053, and is referred to a court of common pleas under that statute for a determination of damages, provisions of the Eminent Domain Code, Act 1964, June 22, P.L. 84, govern the determination of damages including delay damages, as an examination of the statutes reveals a legislative intent that all assessments of damages resulting from condemnation of private property for public purposes be determined under the Eminent Domain Code, Act 1964, June 22, P.L. 84. [370-1-2]
2. Under the Eminent Domain Code, Act 1964, June 22, P.L. 84, a condemnee is not entitled to delay compensation during the period he remains in possession after condemnation. [372]
3. Compensation due a condemnee must be calculated with reference to the date of condemnation which in a condemnation effected under the Public Utility Law, Act 1937, May 28, P.L. 1053, is the date of the condemnation order of the Pennsylvania Public Utility Commission, not the date the matter is referred to court for a determination of damages. [372]
Argued December 6, 1977, before President Judge BOWMAN and Judges CRUMLISH, JR., WILKINSON, JR., ROGERS, BLATT and DiSALLE.
Appeals, Nos. 246 Misc. Dkt. and 456 C.D. 1977, from the Order of the Court of Common Pleas of Delaware County in case of Kathryn Hassett v. Commonwealth of Pennsylvania, Department of Transportation, No. 5846 of 1975.
Condemnation order entered by Pennsylvania Public Utility Commission. Petition in the Court of Common Pleas of Delaware County for appointment of viewers and a determination of damages. Condemnee filed motions for summary judgment and for judgment on the pleadings seeking delay damages. Motions denied. REED, JR., J. Condemnee appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Robert E. Slota, with him Murphy and Slota, for appellant.
Michael L. Brint, Special Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellee.
Kathryn M. Hassett (condemnee) appeals here from an order of the Court of Common Pleas of Delaware County which denied her request that she be paid delay compensation from the date her property was condemned by the Pennsylvania Public Utility Commission (PUC).
The property here concerned was condemned by order of the PUC on October 31, 1969 for use in the construction of an interstate highway project. In November 1975 the determination of damages due the condemnee was submitted at the condemnee's request to the court of common pleas pursuant to Section 411 of the Public Utility Law (Law), 66 P. S. § 1181, and she made motions there both for summary judgment and for judgment on the pleadings seeking delay compensation from the date of condemnation by the PUC to the date of payment of just compensation. The court denied both motions, holding that the determination of damages due the condemnee was controlled by Article VI of the Eminent Domain Code (Code) and that, because the condemnee had remained in possession of the property since the date of condemnation, delay compensation was not available to her. This appeal followed.
Act of May 28, 1937, P.L. 1053, as amended, 66 P. S. § 1101 et seq.
Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P. S. § 101 et seq.
There are no facts in dispute. The sole legal issue presented here is what is the law to be applied for the determination of damages when an eminent domain case is referred from the PUC to the court of common pleas pursuant to Section 411 of the Law, 66 P. S. § 1181. The condemnee argues that, because the taking was effected under Section 409 of the Public Utility Law, 66 P. S. § 1179 and not under the Eminent Domain Code, the Eminent Domain Code does not apply to the proceeding and the pre-code common law applies with respect to delay compensation payable to the condemnee. See, e.g., Stine v. Department of Transportation, 26 Pa. Commw. 292, 364 A.2d 745 (1976). We disagree.
Section 303 of the Eminent Domain Code, 26 P. S. § 1-303, provides in pertinent part:
It is intended by this act to provide a complete and exclusive procedure and law to govern all condemnations of property for public purposes and the assessment of damages therefor, . . . Provided, however, That nothing in this act shall be deemed to affect, vary, alter or modify the jurisdiction or power of the Public Utility Commission of the Commonwealth of Pennsylvania. . . . (Emphasis added.)
The procedure by which the determination of damages due the condemnee, was submitted to the court of common pleas is contained in Section 411(a) of the Public Utility Law, 66 P. S. § 1181 (a), which provides in relevant part:
[T]he commission may, of its own motion, or upon application of any party in interest, submit to the court of common pleas of the county wherein the property affected is located, the determination of the amount of damages to any property owner due to such condemnation, for which purpose such court shall appoint viewers, from whose award of damages an appeal to said court shall lie on the part of any person or party aggrieved thereby, under the general law applicable to the appointment of viewers, for the ascertainment of damages due to the condemnation of private property for public use. (Emphasis added.)
Reading these two sections together, we believe that it was the legislative intent that all assessments of damages resulting from the condemnation of private property for public purposes must be determined when submitted to courts of common pleas pursuant to the relevant provisions of the Eminent Domain Code. This conclusion is supported by the plain language of both sections which together provide that, upon the appropriate motion, a court of common pleas may determine the damages due to the condemnation by the PUC of private property for a public use and that the Eminent Domain Code furnishes the complete and exclusive procedure to govern the assessment of damages for all condemnations of property for public purposes. The arguments of the condemnee to the contrary are unpersuasive.
We do not see this result as affecting, varying, altering or modifying the jurisdiction or power of the PUC. See Section 303 of the Code, 26 P. S. § 1-303.
Section 611 of the Eminent Domain Code, 26 P. S. § 1-611, concerns the payment of delay compensation and provides in pertinent part:
The condemnee shall not be entitled to compensation for delay in payment during the period he remains in possession after the condemnation. . . .
It is undisputed here that condemnee has remained in possession of the property ever since it was condemned by the PUC. She is, therefore, ineligible for delay compensation under Section 611 of the Code. See County of Bucks v. .800 Acres of Land in Middletown Township, 32 Pa. Commw. 448, 379 A.2d 903 (1977); Commonwealth v. Upholzer, 18 Pa. Commw. 102, 334 A.2d 812 (1975); Govatos v. Redevelopment Authority of the County of Montgomery, 11 Pa. Commw. 529, 314 A.2d 536 (1974).
The condemnee argues finally that if the Eminent Domain Code applies here, the date of taking of her property for purposes of valuation should not be the date of the PUC's condemnation order but rather the date upon which the PUC referred the matter to the court. Again we disagree. Section 602(a) of the Eminent Domain Code, 26 P. S. § 1-602(a), clearly provides that just compensation due a condemnee must be calculated with reference to the date of condemnation. The date of condemnation here is clearly the date of the PUC's order.
The order of the lower court is affirmed.
ORDER
AND NOW, this 27th day of March, 1978, the order of the Court of Common Pleas of Delaware County, numbered 5846 of 1975 and dated January 25, 1977, is hereby affirmed.