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DACAR CHEMICAL PRODUCTS COMPANY v. ALLEGHENY COUNTY REDEVELOPMENT AUTHORITY (04/24/67)

decided: April 24, 1967.

DACAR CHEMICAL PRODUCTS COMPANY
v.
ALLEGHENY COUNTY REDEVELOPMENT AUTHORITY, APPELLANT



Appeal from order of Court of Common Pleas of Allegheny County, April T., 1965, No. 2725, in case of Dacar Chemical Products Company v. Redevelopment Authority of Allegheny County.

COUNSEL

Sylvan Libson, with him Aaron Cohen, for appellant.

William J. Kenney, with him Henry W. Fulton, Jr., and Kenney, Stevens, Clark & Semple, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Dissenting Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell and Mr. Justice Musmanno join in this dissenting opinion.

Author: Cohen

[ 425 Pa. Page 344]

On June 11, 1964 the Redevelopment Authority of Allegheny County (defendant herein) pursuant to the Urban Redevelopment Law, Act of May 24, 1945, P. L. 991, as amended, adopted a resolution condemning property owned by plaintiff. On June 22, 1964, the Eminent Domain Code of 1964, P. L. 84, became effective. On August 26, 1964, defendant received approval from the Court of Common Pleas of Allegheny County, of its bond to obtain the right to immediate possession of plaintiff's property.

Section 302 of the Eminent Domain Code of 1964, 26 P.S. § 1-302 (Supp. 1965), provides in relevant part: "This act shall take effect immediately upon approval, and shall apply to all condemnations effected thereafter.

[ 425 Pa. Page 345]

. . ." Article VI of the 1964 Code creates new rights of damages which have no counterpart in prior Pennsylvania law. Under § 608 of the new act the condemnee is entitled to recover damages for the expenses incurred in moving machinery and equipment and reinstalling the same; under § 610, the condemnee may recover his expenses in moving other personal property. Under earlier law, neither right of damages was available to a condemnee. Accordingly, plaintiff's recoverable damages will be substantially increased if the 1964 Code is applicable to this condemnation proceeding. The issue resolves itself to the question of determining when a condemnation is deemed to be "effected" -- upon the passage of the resolution of taking or upon the filing of the bond. The lower court decided that the effective date of condemnation was the date of approval of the bond. We disagree.

This question, although not previously decided by us in this context, has been answered by this Court in several earlier cases where we determined that the date of taking was the date upon which the condemning authority formally adopted its resolution of taking. We believe that the taking was effected by the Board's resolution on June 11, 1964; that the approval of the bond was merely a prerequisite of the Authority's right of immediate entry; and that the date of taking related back to the date of the condemnation resolution. In Lakewood Memorial Gardens, Inc. Appeal, 381 Pa. 46, 112 A.2d 135 (1955), we so held and stated: "The giving of a bond, as required by Article XVI, Section 8, of the Pennsylvania Constitution, to secure just compensation to an owner for property 'taken, injured or destroyed' in an exercise of eminent domain, is, of course, a prerequisite of the condemnor's right of entry. In constitutional contemplation, it is the entry which constitutes the 'taking, injury or destruction' before which compensation for the affected

[ 425 Pa. Page 346]

    property must be paid or secured. The act of condemnation, however, may, and frequently does, take place some time before actual entry upon the appropriated property. In such instance, after there is a physical entry, the date of the taking relates back to the date of the ordinance or resolution of condemnation. . . . [T]he act of condemnation is a 'constructive appropriation' . . . it is that event to which 'the taking' relates back after there has been an actual physical entry. It is as of that date that the damages to the owner, both for the property taken, injured or destroyed and for detention of payment of the damages, are to be reckoned." (381 Pa. at 55-56, 112 A.2d 140). In Braddock Borough v. Bartoletta, 409 Pa. 281, 186 A.2d 243 (1962), affirming per curiam 28 Pa. D. & C. 2d 529 (1961), we affirmed the judgment of the lower court reaching an identical conclusion.

Perhaps the language most pertinent to the instant matter is that appearing in Philadelphia Appeal, 364 Pa. 71, 70 A.2d 847 (1950), wherein this Court determined that a municipal ordinance appropriating specified tracts of land by its own force effected a condemnation. At 364 Pa. 73-74, 70 A.2d 848-849, Mr. Justice (later Chief Justice) Charles Alvin Jones, speaking for a unanimous Court declared: "The ordinance was no mere authorization to institute proceedings to condemn. It was the condemnation. . . . The ordinance was intended to, and by its own force did, effect ...


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