Appeal from the Order of the Court of Common Pleas of Allegheny County in case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, of Right of Way for Legislative Route 1021, Section 1A, a Limited Access Highway in the City of Pittsburgh, No. 1824 October Term, 1970.
Mark S. Silver, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for appellant.
George R. Specter, with him Louis Caplan, Philip Baskin and Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson. Concurring Opinion by Judge Rogers. Judge Kramer joins in this opinion.
[ 16 Pa. Commw. Page 509]
On August 24, 1970, appellant-condemnor filed a declaration of taking condemning certain property owned by appellee-condemnee. On February 24, 1972, the Allegheny County Court of Common Pleas sustained condemnee's preliminary objections as to jurisdiction and dismissed the declaration of taking. The Commonwealth did not appeal this order. Condemnee then presented a petition for deterimnation and award of damages pursuant to Sections 406(e) and 408 of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. §§ 1-406(e) and 1-408 (Supp. 1974-1975). Hearings were held and condemnee presented testimony as to damages. On November 16, 1973, the court below awarded damages to condemnee in the amount of $96,516.00. Of this amount, appellant-condemnor does not contest the $35,000.00 awarded for counsel fees or the $10,000.00 awarded for appraisal
[ 16 Pa. Commw. Page 510]
fees. It is the remaining $51,516.00 that is in issue here.
The lower court found that condemnee had been contemplating the construction of improvements on the subject land but had put off the construction because of possible condemnations that one of condemnee's officers had learned of informally in 1966. On the basis of expert testimony presented at the hearing, the court found that the cost of this proposed construction would have been $343,734.00 on August 24, 1970, the date of the declaration of taking, and $395,250.00 on or about March 27, 1972, the last day on which appeal could have been taken to the February 24, 1972 order dismissing the declaration of taking. It is the difference in these two amounts, $51,516.00, which was awarded to condemnee and which appellant-condemnor now contests.
Section 406(e) of the Code provides that when a condemnee's preliminary objections are sustained, he shall be entitled to damages as if the condemnation had been revoked and shall proceed in accordance with Section 408. Section 408, as it read at the time of this condemnation, provided, in pertinent part: ". . . the condemnee shall be entitled to the damages sustained by him including costs, expenses and reasonable attorney's fees and such damages shall be assessed by the court, or the court may refer the matter to viewers to ascertain and assess the damages sustained by the condemnee, whose award shall be subject to appeal as provided in this act . . . ." (Emphasis added.)*fn1 The lower court found that had the improvements been constructed when title was revested in condemnee, they would have cost $51,516.00 more than if they had been
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constructed at the date of the condemnation, and concluded that this was a type of damage contemplated by Section 408. We disagree.
Historically it has been the law that there is no constitutional right in an owner to recover losses and expenses occasioned by the discontinuance of a condemnation proceeding. Therefore, any right to recover damages must be conferred by statute. The law, both statutory and case, as it has developed, has only allowed recovery for losses actually sustained by the property owner. These have included attorney's fees, appraisal fees, engineering fees and witness fees as well as direct physical injuries to the property ...