Appeal from the Order of the Court of Common Pleas of Montgomery County in case of A Condemnation Proceeding in Rem by the Township of Cheltenham of Montgomery County, Pennsylvania, For the Purpose of Sanitary Land Fill and of Enlarging and Maintaining the Township's Public Parks, Recreation Areas and Facilities, owned by Andrew Vecchione and Salvatore Vecchione, No. 72-8288.
John F. Ledwith, with him Schubert, Mallon, Walheim & deCindis, for appellant, Andrew Vecchione.
Henry L. Menin, with him Menin, Wilson & Flick, for appellant, Salvatore Vecchione.
Samuel H. High, Jr., with him John F. Christie, III, and High, Swartz, Roberts and Seidel, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer.
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This condemnation case raises an intriguing question of first impression. Does the failure of the Pennsylvania Eminent Domain Code*fn1 to provide for a hearing prior to the filing of a declaration of taking, which results in the passing of the title in the property condemned to the condemnor, violate the due process clause of the United States and Pennsylvania Constitutions?
The factual and procedural background that frames this question can be briefly stated. Land consisting of 8.677 acres owned by Salvatore and Andrew Vecchione (condemnees) as tenants in common became the subject of eminent domain proceedings initiated by Cheltenham Township, a township of the first class, located, as is the land in question, in Montgomery County. The purposes of the condemnation were stated to be to acquire ground for a sanitary landfill and for enlarging and maintaining the Township's public parks, recreational areas, and facilities. Condemnees filed preliminary objections to the declaration of taking which were dismissed by the Court of Common Pleas of Montgomery County. This appeal was taken from the lower court's order of dismissal, and we affirm.
Condemnees strongly contend that the answer to the question above is dictated by the case of Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972), reh. den., 409 U.S. 902, 93 S. Ct. 177, 180, 34 L. Ed. 2d 165 (1972). In Fuentes the United States Supreme Court held that the replevin laws of Florida and Pennsylvania violated the due process clause of the Fourteenth Amendment insofar as they denied the right to a prior opportunity to be heard before chattels were taken from their possessor.
Section 402(a) of the Eminent Domain Code, 26 P.S. § 1-402(a), reads: "Condemnation, under the power
[ 13 Pa. Commw. Page 263]
of condemnation given by law to a condemnor, which shall not be enlarged or diminished hereby, shall be effected only by the filing in court of a declaration of taking, with such security as may be required under section 403(a) [26 P.S. § 1-403], and thereupon the title which the condemnor acquires in the property condemned shall pass to the condemnor on the date of such filing, and the condemnor shall be entitled to possession as provided in section 407 [26 P.S. § 1-407]."
Section 407(a) of the Eminent Domain Code, 26 P.S. § 1-407(a), reads: "The condemnor, after the expiration of the time for filing preliminary objections by the condemnee to the declaration of taking, shall be entitled to possession or right of entry upon payment of, or a written offer to pay to the condemnee, the amount of just compensation as estimated by the condemnor. If a condemnee thereafter refuses to deliver possession or permit right of entry, the prothonotary upon praecipe of the condemnor shall issue a rule, returnable in five days after service upon the condemnee, to show cause why a writ of possession should not issue, upon which the court, unless preliminary objections warranting delay are ...