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HAMPDEN TOWNSHIP v. BRACKBILL (03/06/73)

decided: March 6, 1973.

HAMPDEN TOWNSHIP
v.
BRACKBILL, ET AL.



Appeal from the Order of the Court of Common Pleas of Cumberland County in case of In Re: Condemnation of Lands in the Township of Hampden, by the Township of Hampden for Installation of Sanitary Sewer System, No. 902 September Term 1971.

COUNSEL

Ronald M. Katzman, with him Goldberg, Evans & Katzman, for appellant.

John M. Eakin, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt.

Author: Blatt

[ 8 Pa. Commw. Page 59]

On August 31, 1971, the Township of Hampden (Township) filed a declaration of taking of an easement over certain tracts of land owned by Raymond and Margaret Brackbill and by Robert L. and Ada A. Brackbill and others (Brackbills) for construction of a sanitary sewer. This project involved approximately 200 different property owners. The Brackbills filed preliminary objections to the taking which were dismissed by the lower court. Thereafter they petitioned for the appointment of boards of view to ascertain and award damages, and such boards were appointed. On application of the Township, a rule was then granted on the Brackbills to show cause why the orders appointing the boards of view should not be vacated or, in the alternative, the boards enjoined from performing their duties until all condemnations involved in the sewer project could be heard at one time. It was argued that the boards must assess special benefits as well as ascertain damages and that this must be done in one proceeding. The lower court dismissed the rule and ordered the boards to proceed, holding that condemnees need not delay their quest for damages until benefits are ready for assessment. It also stated, however, that:

[ 8 Pa. Commw. Page 60]

"The condemnees will, of course, be obligated to pay whatever assessments are eventually levied."

We agree with the Township that benefits and damages must be determined and assessed in the same proceeding, but we cannot agree that the final determination in each individual case must await the completion of all condemnation proceedings.

Elizabeth Township Sanitary Authority Case, 413 Pa. 502, 198 A.2d 304 (1964), made it clear that in proceedings instituted under the First Class Township Code, Act of June 24, 1931, P.L. 1206, 53 P.S. § 55101 et seq., there is no requirement that separate hearings be held to ascertain damages and assess benefits. Nor does the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, 26 P.S. § 1-101 et seq., make any such requirement for proceedings begun thereunder.

Section 303 of the Eminent Domain Code, 26 P.S. § 1-303, while providing that it is "a complete and exclusive procedure and law to govern all condemnations of property for public purposes . . .", also provides that it is not to be deemed to affect, vary, alter or modify "any act providing for the assessment of benefits for public improvements on the properties benefited." Moreover, a reading of other provisions of the Code indicates the meaning of this provision to be merely that other statutes pertaining to assessment of benefits are not to be superseded. It does not mean that, when a condemnation proceeding is instituted under the Code, benefits may not be assessed at the same time damages are ascertained.

Section 511(5) of the Eminent Domain Code, 26 P.S. § 1-511(5), provides that viewers shall file a report which shall include: "[a] schedule of damages awarded and benefits assessed. . . ." The Comment of the Joint State Government Commission which accompanies this section, states: "Clause ...


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