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June 4, 1963


Appeal, No. 61, March T., 1963, from order of Court of Common Pleas of Allegheny County, July T., 1962, No. 2408, in case of Edward Kelly and Thomas A. Kelly v. Redevelopment Authority of Allegheny County. Order affirmed in part and reversed in part.


Charles F. Dean, for appellants.

Sylvan Libson, with him William J. Fahey, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Cohen

[ 411 Pa. Page 211]


Appellee, Redevelopment Authority of Allegheny County, condemned certain lands owned by appellants. The board of viewers awarded damages of $131,250. Both parties appealed this award to the Court of Common Pleas of Allegheny County where on April 7, 1961 the jury returned a verdict of $130,000 in favor of appellants. Still not satisfied with the amount of damages, appellants moved for a new trial. When this motion was denied, appellants on January 8, 1962 entered judgment on the verdict and appealed to this Court where the judgment was affirmed.*fn1

On May 8, 1962, appellee tendered payment of the $130,000. In addition to this sum, appellants demanded 6% interest on the $130,000 from April 7, 1961, the date of the jury verdict,*fn2 and also witness fees of $50.45. Appellee denied that these amounts were due. Accordingly, it was agreed that appellants should accept the $130,000 as of May 8, 1962, and that a "case stated" should be presented to the court below raising two questions: (1) whether appellants could recover the witness fees incurred at the trial in the common

[ 411 Pa. Page 212]

    pleas court; and (2) whether appellants were entitled to interest on the jury verdict. The court below held that appellants were not entitled to recover either of these sums and this appeal followed.

Turning first to the question of the witness fees, we conclude that the court below ruled properly in this matter. Section 1712 of the Urban Redevelopment Law provides that the "Authority may exercise the right of eminent domain in the manner provided by law for the exercise of such right by cities or counties, as the case may be, of the same class as the city or county in which such Authority is organized to operate."*fn3

Appellee is organized to operate in Allegheny County, a county of the second class. With regard to the payment of costs incurred in eminent domain proceedings, section 2625 of the Second Class County Code provides: "... all costs and expenses incurred shall be paid by the county, except in cases where an appeal is taken by any party in interest from the award of the viewers and the appellant does not recover any greater amount than the viewers award, in which case the appellant shall pay all costs of such appeal." (Emphasis supplied).*fn4 Since appellants did not obtain a larger amount by virtue of their appeal to the common pleas court, appellee is not liable for the witness fees. Cf. Simon Appeal, 408 Pa. 464, 184 A.2d 695 (1962).

Appellants assert that the Urban Redevelopment Law does not incorporate section 2625 of the Code because it was enacted eight years prior thereto. We need not pass on the merits of this argument since its factual basis is incorrect, section 2625 merely being a codification of prior statutes which antedate the Urban Redevelopment Law.*fn5

[ 411 Pa. Page 213]

A more difficult issue is presented by the question of interest on the verdict. The Act of April 6, 1859 provides that interest shall be collectible from the date of the verdict.*fn6 While it is clear that interest runs where the losing party contests the verdict,*fn7 the question of whether interest accrues where the successful party so acts is one of first impression.*fn8

Appellee points to Watson v. McManus, 223 Pa. 583, 72 Atl. 1066 (1909) to show that exceptions have been made to the running of interest. In that case, we held that interest did not run where the judgment-debtor was enjoined by court order from satisfying the judgment.*fn9 The case before us now, however, does not present a factual situation where an exception should be made to the running of interest.

Appellee argues that it has been prevented from satisfying the judgment by appellants' attempts to set aside the verdict and judgment. Yet during this entire period, without making any tender of the amount admittedly due, appellee has had full use and benefit of the money. Unlike the situation in Watson, there was no court order in this case forbidding a tender. Also,

[ 411 Pa. Page 214]

    there is no suggestion that appellants have acted in other than good faith or with due dispatch in prosecuting their appeal. Under these circumstances, appellants should not be penalized for exercising their right of appeal by forfeiting their right to interest on the verdict. See Note, 64 Yale L.J. 1019, 1028-29 (1955). Accordingly, we reverse the refusal of the court below to award interest and direct that interest be granted.


Affirmed in part and reversed in part.

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