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PENN IRON WORKS v. COMMONWEALTH PENNSYLVANIA (06/07/74)

decided: June 7, 1974.

PENN IRON WORKS, INC., APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Berks County in case of Penn Iron Works, Inc. v. Commonwealth of Pennsylvania, Department of Transportation, No. 104 May Term, 1969.

COUNSEL

Raymond C. Schlegel, with him Balmer, Mogel, Speidel & Roland, for appellant.

Jerry R. Richwine, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for appellee.

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

Author: Blatt

[ 13 Pa. Commw. Page 533]

The Department of Transportation (Department) filed a declaration of taking on April 24, 1969, for the condemnation of property owned by the appellant, the Penn Iron Works, Inc. (condemnee) and used for a manufacturing plant. On July 14, 1969, the parties entered into a final settlement agreement for damages which provided in part:

[ 13 Pa. Commw. Page 534]

"Whereas the property (or property interest) of the Condemnee has sustained damages as a result of said condemnation;

"Now, Therefore, in consideration of the sum of Six Hundred Thousand, Six Hundred ($600,600.00) Dollars, which sum the Commonwealth agrees to pay, the Condemnee does hereby release, remise, quitclaim and forever discharge the Condemnor or any agency or political subdivision thereof or its or their employees or representatives of and from all suits, damages, claims and demands which the Condemnee might otherwise have been entitled to assert under the provisions of the Eminent Domain Code, Act No. 6, 1964 Special Session, as a result of the aforesaid condemnation.

"It is understood that the Condemnee shall retain all machinery and equipment."

Subsequently the condemnee began its operation at a nearby location after having moved machinery, equipment, inventory, office furniture and fixtures from the condemned location. The Board of View and the lower court would not agree with the condemnee's contention that it should be awarded the costs of moving its business, particularly its machinery, equipment and fixtures, either under the Eminent Domain Code, Act of June 22, 1964, P.L. 84, Spec. Sess., as amended, 26 P.S. § 1-101 et seq., or under Sections 304.2 of the State Highway Law, Act of June 1, 1945, P.L. 1242, as amended, 36 P.S. § 670-304.2.*fn1 (The Department stipulated that it would pay $3,505.12 for the cost of the removal of personal property.)

We must now determine whether or not the lower court abused its discretion or ...


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