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MOFFAT APPEAL. (06/03/60)

June 3, 1960

MOFFAT APPEAL.


Appeals, No. 84 and 128, Jan. T., 1960, from award of State Mining Commission filed in Court of Common Pleas of Lackawanna County, Jan. T., 1958, Nos. 288 and 266, in re appropriation and taking of lands of Robert Y. Moffat. Award affirmed in part and reversed in part.

COUNSEL

William J. Oliver, with him J. Hayden Oliver, Paul H. Price, and J. Harry Morosini, for appellant.

James E. O'Brien, with him Henry E. Harner, for appellee.

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

Author: Cohen

[ 400 Pa. Page 125]

OPINION BY MR. JUSTICE COHEN.

These are appeals from an award of a State Mining Commission convened on the petition of Robert Y. Moffat, appellant in No. 84, under the State Mining Commission Act (Act of July 3, 1941, P.L. 259, amending Act of June 1, 1933, P.L. 1409, 52 PS § 1501 et seq.) to determine the amount of coal owned by Moffat necessary to be left in place in order to give lateral and vertical support to certain portions of the Northeastern extension of the Pennsylvania Turnpike, and to award damages for the taking thereof. Diamond Colliery Company, appellant in No. 128, was granted permission to intervene in the proceedings before the State Mining Commission as the owner of a smaller portion of land condemned by the Pennsylvania Turnpike Commission. The Commission awarded to Moffat $1,064,614.60, and to the Diamond Colliery Company $3500 as damages for the coal and silt required to be left in place, including detention damages. By their appeals the appellants (1) contend that the damages awarded were inadequate and unsupported by any substantial evidence, and (2) ascribe error to the failure of the Commission to award detention damages for the full period between the date of condemnation and the date of final judgment on the award.

The appellants further question the dismissal of their appeal requesting a de novo jury trial by the Court of Common Pleas of Lackawanna County, but that matter is improperly before us and will not be decided. Subsequent to the award of the State Mining

[ 400 Pa. Page 126]

Commission, the appellants filed an appeal with the Court of Common Pleas of Lackawanna County requesting a trial de novo on the grounds that they were entitled to such under the State Mining Commission Act. That court dismissed the appeal and quashed the proceedings on the grounds that the Pennsylvania Turnpike Commission was not a municipal or other corporation within the meaning of Section 8, Art. 16 of the Pennsylvania Constitution and consequently the appellants were not entitled to a jury trial under the proviso of the State Mining Commission Act allowing an appeal to the courts of common pleas where a party is constitutionally guaranteed a jury trial. The present appeals, however, are solely from the award of the State Mining Commission. There is no separate appeal from the order of the court below dismissing the appeal for a jury trial which was entered subsequent to the taking of the instant appeals. See, e.g., Kerry v. Commonwealth, 381 Pa. 242, 113 A.2d 254 (1955). There being no separate appeal from that order, we cannot decide the question raised.

Generally speaking, the preliminary appraisement of damages resulting from the exercise of the right of eminent domain by the Commonwealth or its nominees is entrusted to a board of viewers. When coal is taken for the vertical and lateral support of lands, easements or rights-of-way of the Commonwealth, however, the legislature has chosen to set up a separate body to assess the resulting damages. This body, the State Mining Commission,*fn1 is empowered under the Act to determine,

[ 400 Pa. Page 127]

    suffered by a condemnee because he is precluded from mining and marketing his coal in future years. Nevertheless, the Commission must reach a value, and to do so it combines its own expert knowledge with that of the expert witnesses ...


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