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TRESER v. GENERAL STATE AUTHORITY. (09/16/59)

September 16, 1959

TRESER, APPELLANT,
v.
GENERAL STATE AUTHORITY.



Appeal, No. 245, Oct. T., 1959, from judgment of Court of Common Pleas of Potter County, Nov. T., 1955, No. 33, in case of Edward Treser v. The General State Authority. Judgment affirmed.

COUNSEL

Joseph J. Malizia, for appellant.

Edward A. Collins, Jr., with him James Philpott, for appellee.

Before Rhodes, P.j., Wright, Woodside, Ervin, and Watkins, JJ. (hirt and Gunther, JJ., absent).

Author: Watkins

[ 190 Pa. Super. Page 491]

OPINION BY WATKINS, J.

This appeal presents the issue as to whether, in an eminent domain proceeding, the appellant, whose property has been appropriated, is entitled to have included in his judgment, not only 6% interest on the determined value of the property from the date of the taking to final judgment, as provided by the Act of Assembly, but also 6% of the determined value of the property as damages for delay in payment or detention money for the same period, in accordance with the "just compensation" provision of the State Constitution.

The General State Authority appropriated the land of Edward Treser, located in Wharton Township, Potter County, Pennsylvania, on October 3, 1955. On February 23, 1957, a jury returned a verdict of $33,500 as the value of the land, plus 6% interest on the said sum from the taking to final judgment or a total judgment of $36,357.50. At the suggestion of the court below the jury molded the verdict to the extent that the $2857.50 item for interest was considered as damages for delay in payment.

The court below on December 7, 1957 refused a motion for a new trial, holding that the verdict of the jury "can be properly upheld under either theory, i.e., that of damage for delay, or as 6% interest on the award", and entered judgment on the verdict with interest from February 23, 1957, the date of the verdict, to the date of the entry of final judgment.

[ 190 Pa. Super. Page 492]

The General State Authority promptly paid the appellant the amount of the judgment in the sum of $36,357.50 but contended that the Authority was not liable for interest on this judgment after February 23, 1957 when the jury by its verdict fixed the sum due. However, the Authority did not appeal.

"When land is taken under the power of eminent domain, the owner thereof acquires the right to its value immediately upon appropriation. Until that value has been definitely ascertained, it is called damages, not a debt due; but when ascertained it relates back to the time of taking, and the owner is entitled to compensation for delay in its payment, unless just cause be shown to the contrary." Whitcomb v. Philadelphia, 264 Pa. 277, 284, 107 A. 765 (1919). The Whitcomb rule as regards compensation for delay in payment or, as it is also called, detention money, developed because the Commonwealth is not liable to a property owner for the payment of interest in addition to the amount received as actual property damages when it has exercised the right of eminent domain. Culver v. Commonwealth, 348 Pa. 472, 35 A.2d 64 (1944).

The patent injustice of denying compensation for delay in payment flies in the face of the provisions of Art. I, ยง 10 of the State Constitution, where it is expressly ordained that private property shall not be taken or applied to public use without just compensation being first made or secured. And it has long been recognized that one of the elements to be taken into consideration in determining what is just compensation is damage due to delay in payment over the period between the exercise of the right of eminent domain and the final adjustment of damages inflicted by it. Although there has ...


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