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KELLY v. ALLEGHENY COUNTY REDEVELOPMENT AUTHORITY. (06/04/63)

June 4, 1963

KELLY, APPELLANT,
v.
ALLEGHENY COUNTY REDEVELOPMENT AUTHORITY.



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.

COUNSEL

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]

OPINION BY MR. JUSTICE COHEN

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 ...


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