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LICHTENSTEIN v. PENNSYLVANIA TURNPIKE COMMISSION (12/31/59)

December 31, 1959

LICHTENSTEIN
v.
PENNSYLVANIA TURNPIKE COMMISSION, APPELLANT.



Appeal, No. 187, Jan. T., 1959, from judgment of Court of Common Pleas of Montgomery County, June T., 1954, No. 621, in case of Morris Edwin Lichtenstein v. Pennsylvania Turnpike Commission. Judgment affirmed; reargument refused March 14, 1960. Proceedings on petition to determine if Pennsylvania Turnpike Commission is liable for payment of interest on award of damages made by jury in condemnation. Adjudication filed finding that property owner is entitled to interest, and judgment entered, opinion by DANNEHOWER, P.J. Pennsylvania Turnpike Commission appealed.

COUNSEL

Prall B. Roads, Assistant Counsel, with him Thomas E. Waters, and Hubert P. Earle, Chief Counsel, for Pennsylvania Turnpike Commission, appellant.

Edward J. Hardiman, with him Raymond Pearlstine, and Wisler, Pearlstine & Talone, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Jones

[ 398 Pa. Page 417]

OPINION BY MR. CHIEF JUSTICE JONES

The Pennsylvania Turnpike Commission condemned and entered upon certain property of Morris Edwin Lichtenstein, the plaintiff, in Towamencin Township, in Montgomery County, for use in the construction of the Delaware River Extension of the Pennsylvania Turnpike. In due course, Lichtenstein petitioned the Court of Common Pleas of Montgomery County for the appointment of viewers for the ascertainment and determination of the damages due him for the Commission's appropriation of his property. The viewers filed their report on June 24, 1958. Therein they awarded the plaintiff damages in the sum of $84,800. No exceptions were filed to the viewers' report nor was an appeal taken from their award which automatically became final.

On September 19, 1958, almost three months after the final award (Lichtenstein having made numerous demands for payment in the interim), the Commission tendered him a check for $84,800 which he refused to accept because the sum did not include interest from the date of the viewer's award. The Commission persisted in refusing to pay interest on the award and a few days later petitioned the Court of Common Pleas of Montgomery County to order Lichtenstein to satisfy the award of record upon the Commission's paying to him the sum of $84,800. The court granted a rule on the Commission's petition calling upon Lichtenstein to show cause why satisfaction of the award should not be entered, as prayed for in the Commission's petition. After argument, the Court discharged the rule and ordered the Commission to pay interest on the award at

[ 398 Pa. Page 418]

    the rate of 6% from June 24, 1958, the date of the award's entry, until the date of payment. It is from that order that the commission took this appeal.

The Act of April 25, 1929, P.L. 777, No. 328, Section 1, as amended by the Act of March 26, 1931, P.L. 10, No. 7, Section 1, 26 PS § 43, provides that "The amount of damages allowed in a report of viewers for the taking, injury or destruction of property by the exercise of the right of eminent domain shall, as finally confirmed, bear interest at the rate of six per centum per annum from the date of the filing of the report."

It has been held that the foregoing statutory provision was not intended to bind the Commonwealth. In Culver v. Commonwealth, 348 Pa. 472, 474-475, 35 A.2d 64, after noting that "The learned court below was of the opinion that the Act of April 25, 1929, P.L. 777, as amended by the Act of March 26, 1931, P.L. 10, has obligated the Commonwealth to pay interest under the facts of this case - this being an eminent domain proceeding", this Court then said that "A reading of this statute reveals that this was error. In Tunison v. Commonwealth, supra [347 Pa. 76, 31 A.2d 521], we said (p. 78): '... it is axiomatic that a statute is never presumed to deprive the state of any prerogative, right or property unless the intention to do so is clearly manifest, either by express terms or necessary implication. Baker et al. v. Kirschnek et al., 317 Pa. 225; Commonwealth v. Trunk et al., 320 Pa. 270; see 59 C.J. d1103, § 653.' The act of 1929, as amended, does not specifically mention the Commonwealth nor does it indicate any intendment on the part of the legislature to deprive the State of its non-liability for the payment of interest on its obligations."

The appellant relies on the ruling in Pennsylvania Turnpike Commission v. Smith, 350 Pa. 355, 363, 39 A.2d 139, where this ...


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