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MUNICIPAL AUTHORITY ZELIENOPLE BOROUGH APPEAL (08/06/68)

decided: August 6, 1968.

MUNICIPAL AUTHORITY OF ZELIENOPLE BOROUGH APPEAL


Appeal from order of Court of Common Pleas of Beaver County, Sept. T., 1965, No. 196, in re condemnation of 203.76 acres of land in Franklin Township owned by Tasa Coal Company.

COUNSEL

John L. Wilson, with him Robert L. Orr, for appellant.

John L. Spiegel, with him Oran W. Panner, and Plowman and Spiegel, for appellee.

Lee E. Whitmire, Jr., for Northeastern Beaver County School District, and Samuel R. Pitts, Solicitor, for County of Beaver, intervenor appellees.

Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Mr. Justice Roberts concurs in the result. Mr. Chief Justice Bell took no part in the consideration or decision of this case.

Author: Cohen

[ 431 Pa. Page 308]

This is an appeal from an order of the Court of Common Pleas of Beaver County sustaining certain preliminary objections filed by Tasa Coal Company, the County of Beaver, and Northeastern Beaver County School District, to eminent domain proceedings instituted by the Municipal Authority of the Borough of Zelienople, Butler County (Authority). The subject parcel of land was owned by Tasa Coal Company and located in Franklin Township, Beaver County. The land was condemned for use as an airport.

The Authority is a separate entity created pursuant to the Municipality Authorities Act of May 2, 1945, P. L. 382, as amended, 53 P.S. § 301 et seq., by the Borough of Zelienople.

On July 26, 1965, the Authority filed a declaration of taking with the Court of Common Pleas of Beaver County, condemning 203.76 acres of land in Franklin Township, Beaver County. Shortly thereafter the Authority posted a bond in the amount of $60,000 as required by the Eminent Domain Code.

Preliminary objections were filed to the declaration of taking on the following grounds: (1) that the condemnation violates the Eminent Domain Code and the Pennsylvania Constitution in that it constitutes a taking of private property for private use; (2) that the condemnation was capricious and arbitrary in that the taking was authorized without public hearings, study or reflection to determine the public necessity for the taking; (3) the bond posted by the Authority is inadequate security for the payment of just compensation and not in conformity with § 403 of the Eminent Domain Code; (4) that the condemnor has violated § 402

[ 431 Pa. Page 309]

    of the Code by failing to set forth how just compensation has been made or secured; (5) that the condemnor lacks the power to condemn land outside the county in which the condemnor has been created, and (6) that the condemnation violates the Municipality Authorities Act in that the condemnation was inspired by private parties for private use and enjoyment, and several other reasons not necessary to enumerate.

After the taking of depositions and oral argument, the court below dismissed all the preliminary objections except those dealing with the power to condemn without the county line in which the Authority was created, and the adequacy of the posted bond. The court below further ordered and directed that title to the ...


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