Opinion
Argued April 5, 1978
May 24, 1978.
Eminent domain — Damages — Fair market value — Eminent Domain Code, Act 1964, June 22, P.L. 84 — Replacement cost — Unique character.
1. Under the Eminent Domain Code, Act 1964, June 22, P.L. 84, the only proper measure of damages to be awarded a condemnee is the fair market value of the property condemned, and except in very special cases where the property taken is of a unique character it is improper to award the condemnee damages representing the cost of constructing a new building to replace that taken. [467-8-9]
Argued April 5, 1978, before President Judge BOWMAN and Judges CRUMLISH, JR., WILKINSON, JR., MENCER, ROGERS, BLATT and DiSALLE.
Appeal, No. 1134 C.D. 1977, from the Order of the Court of Common Pleas of Delaware County in case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation of Right-of-Way, for Legislative Route 1080, Section A05, R/W, Also Known as Legislative Route 1018 Spur F-A05, a Limited Access Highway in Chester Township and the City of Chester. Township of Chester v. Commonwealth of Pennsylvania, Department of Transportation, No. 7973 of 1973.
Declaration of taking in the Court of Common Pleas of Delaware County. Condemnee filed preliminary objections. Preliminary objections filed. Preliminary objections overruled. Viewers appointed. Award filed. Condemnor appealed. Award affirmed. TOAL, JR., J. Condemnor appealed to the Commonwealth Court of Pennsylvania. Held: Reversed and remanded.
Martin Burman, with him Michael L. Brint, Special Assistant Attorney General, George Bristol, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General-Chief Counsel, and Robert P. Kane, Attorney General, for appellant.
Peter J. Nolan, for appellee.
The Township of Chester, condemnee, owns and operates a low-income public-housing complex containing 150 housing units. The Commonwealth of Pennsylvania, condemnor, filed a declaration of taking wherein it condemned a portion of the complex comprising 32 housing units. A hearing to establish the compensation due was held before a board of viewers which awarded to the Township the cost of constructing a new building to replace the lost units. The Court of Common Pleas of Delaware County affirmed the award of the board of viewers, and this appeal followed. We hold that compensation was improperly computed and remand for a determination of fair market value in accordance with the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P. S. § 1-101 et seq.
There is no dispute that the Township is entitled to receive "just compensation" for the property which is being condemned.
' "[J]ust compensation" means the full monetary equivalent of the property taken. The owner is to be put in the same position monetarily as he would have occupied if his property had not been taken.' . . . To determine such monetary equivalence, the [United States Supreme] Court early established the concept of 'market value': the owner is entitled to the fair market value of his property at the time of the taking. (Citations omitted.)
Almota Farmers Elevator Warehouse Co. v. United States, 409 U.S. 470, 473-74 (1973).
"For more than a century it has been consistently held by [the Pennsylvania Supreme] Court that in condemnation cases the measure of damages is based upon fair market value." Pennsylvania Gas Water Co. v. Pennsylvania Turnpike Commission, 428 Pa. 74, 82, 236 A.2d 112, 116 (1967). The fair-market-value measure of just compensation has now been incorporated into Section 602(a) of the Eminent Domain Code, 26 P. S. § 1-602(a), and is the only measure of compensation provided for by the Code.
Section 602(a) provides:
Just compensation shall consist of the difference between the fair market value of the condemnee's entire property interest immediately before the condemnation and as unaffected thereby and the fair market value of his property interest remaining immediately after such condemnation and as affected thereby, and such other damages as are provided in this code.
The Township cites only one Pennsylvania case to support its contention that it should be allowed to recover the cost of constructing a new building rather than being limited to the fair market value of the condemned structure. Pennsylvania Gas Water Co., supra, involved land which had a unique character as reservoir property and for which no market in the classic sense existed. In what it characterized as a "sharp departure" from the traditional measure of damages, 428 Pa. at 83, 236 A.2d at 117, the Court in that case allowed the condemnee to recover the cost of acquiring substitute land.
The federal cases relied upon by the Township, e.g., United States v. Certain Property in Borough of Manhattan, 403 F.2d 800 (2d Cir. 1968); United States v. Certain Land in Borough of Brooklyn, 346 F.2d 690 (2d Cir. 1965), are readilly distinguishable from the case at hand and are not, in any event, binding upon this Court.
Here, there is no indication that the housing units involved are in any way unique in character, except for the fact that they are owned and operated by a governmental body. Indeed, the Township does not even contend that the property involved cannot be valued in the accepted manner. The only rationale offered for departing from the general rule is an alleged need to replace the lost 32 units. Assuming this need were established, the Township would be in no worse position than a homeowner compelled to find a new home. Such a homeowner would not be entitled to build a new home at the expense of the Commonwealth, and we see no reason why in this case the Township should enjoy any better position.
Those tenants actually being displaced are entitled to financial assistance under Sections 601-A and 603-A of the Eminent Domain Code, added by the Act of December 29, 1971, P.L. 635, 26 P. S. § 1-601A, -603A.
Since fair market value has been the traditional measure of "just compensation," and since this measure is the only one provided for by the Eminent Domain Code, we are not inclined to expand the very narrow exception to the rule established by Pennsylvania Gas Water Co., supra, to include cases such as this where the property involved is not unique and has a readily ascertainable market value.
It should also be noted that Pennsylvania Gas Water Co., supra, arose prior to the effective date of the Eminent Domain Code, and the Supreme Court declined to speculate on how the case would have been decided under the Code. 428 Pa. at 84, n. 9, 236 A.2d at 117, n. 9.
Order reversed and case remanded.
ORDER
AND NOW, this 24th day of May, 1978, the order of the Court of Common Pleas of Delaware County, dated May 3, 1977, sustaining the award of the board of viewers in the above captioned case is hereby reversed; the award of the board of viewers, dated July 15, 1976, is hereby vacated; and this case is remanded for further proceedings not inconsistent with this opinion.