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PORTER (ET AL. v. COMMONWEALTH (10/03/73)

decided: October 3, 1973.

PORTER (ET AL., APPELLANT)
v.
COMMONWEALTH



Appeal from order of Commonwealth Court, No. 303 C.D. 1970, affirming order of Court of Common Pleas of Butler County, Sept. T., 1964, No. 89, in case of Francis H. Porter and Katherine E. Porter, his wife, owners; and Robert C. Sechan, Jr., trading and doing business as Sechan Limestone v. Commonwealth of Pennsylvania.

COUNSEL

Thomas J. Dempsey, with him Armand Cingolani, Jr., Luke and Dempsey, and Cingolani & Cingolani, for appellant.

David A. Johnston, Jr., Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones. Concurring and Dissenting Opinion by Mr. Justice Manderino. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Nix joins in this dissenting opinion.

Author: Jones

[ 454 Pa. Page 463]

This appeal arises from an eminent domain action to determine the just compensation payable to Robert C. Sechan [appellant-condemnee], trading and doing business as Sechan Limestone, and to Francis H. Porter

[ 454 Pa. Page 464]

    and Katherine E. Porter, his wife [condemnees], for the taking of property located in Butler County. On March 11, 1963 the Commonwealth of Pa., Dept. of Highways [now Dept. of Transportation] condemned, for the construction of a limited access highway, approximately 11 acres of a 46 acre tract owned by the Porters. Five months before the condemnation, on October 13, 1962, appellant entered into a mineral lease with the Porters, giving him the right to remove and process all of the limestone, coal and clay under the Porter property for a term of 5 years -- renewable for another five years if the Porters agreed. The lease required, among other things, that appellant pay the Porters $25.00 per month from the date of execution, $10,000 before entry on the land, $.05 per ton for all limestone removed and $.01 per ton for the right to haul across the Porter property. Appellant also owned leased mineral interests in four contiguous tracts owned by different persons and also condemned. On one of these adjacent tracts appellant operated a limestone processing plant. These five mineral interests -- created by separate leases -- were used by appellant in the integrated operations of mining, processing and marketing limestone. Appellant's operation began in 1953.

Following condemnation, appellant joined in the Porters' petition for view. A viewer's hearing was held and their report was filed June 29, 1964. The viewers determined that the property had been damaged to the extent of $16,000 including compensation for delay in payment: $14,000 to the Porters and $2,000 to appellant. Appellant in his appeal from the viewer's determination sought to consolidate, in the eminent domain proceeding which involved only the Porter property, the claims for damages to his interests in all of the five condemned properties. The lower court rejected this approach. In affirming the lower court's decision we held that it was not a denial of due process to refuse to

[ 454 Pa. Page 465]

    consolidate appellant's claims in one condemnation action since he might attempt to prove in each view proceeding the value of his interest in the property by showing the value resulting from the integrated use. Porter v. Commonwealth, 419 Pa. 596, 216 A.2d 646 (1966).

The case was subsequently tried before a jury in May, 1967 in the Common Pleas Court of Butler County to determine the total amount of damages resulting from the condemnation and to apportion that amount between the Porters as owners of the property and appellant as owner of the leased mineral interest. The conflicting testimony with respect to damages was as follows: the testimony of Mr. Porter and his two witnesses ranged between $67,000 to $143,000 as to his damages; appellant's witness testified that appellant's damages were $112,000; and the Commonwealth's two witnesses ranged between $6,000 to $7,400 in damages for both interests combined. A verdict in favor of the condemnees was rendered in the amount of $34,000 without delay compensation: $27,000 to the Porters, and $7,000 to appellant. The trial court molded the verdict in favor of appellant by awarding delay compensation in the sum of $1,773.31. Motions for a new trial were filed by all parties but denied by the lower court. Appellant filed the only appeal to the Commonwealth Court.

The Commonwealth Court being equally divided (Manderino, J., absent) affirmed the lower court's order in a per curiam opinion filed March 8, 1972. Judge Rogers filed an opinion in support of affirmance. Sechan Limestone v. Commonwealth, 4 Pa. Commonwealth Ct. 621, 288 A.2d 553 (1972). We granted allocatur to review the lower court's application of the "integrated use" doctrine, which was promulgated in Porter v. ...


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