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COMMONWEALTH PENNSYLVANIA v. FRANK SELTZER AND ATKIN SELTZER (03/26/75)

decided: March 26, 1975.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT,
v.
FRANK SELTZER AND ATKIN SELTZER, T/A SELTZER COAL COMPANY, APPELLEES



Appeal from the Order of the Court of Common Pleas of Schuylkill County in case of In Re: Condemnation of Legislative Route 1005, Section 1-2 R/W Ryan, New Castle and West Mahanoy Townships, Schuylkill County, by the Commonwealth of Pennsylvania, being for the Property of Frank Seltzer and Atkin Seltzer, t/a Seltzer Coal Company, No. 519 January Term, 1966.

COUNSEL

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

John H. Thomas, for appellee.

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

Author: Rogers

[ 18 Pa. Commw. Page 129]

On December 1, 1965, the Commonwealth of Pennsylvania, Department of Highways (now Department of Transportation) filed a Declaration of Taking by which, in connection with a highway construction project, it took 27.52 acres of a 31.86 tract of land in Schuylkill County owned by Frank and Atkin Seltzer, brothers trading as Seltzer Coal Company. The property had for many years been used by the Seltzers in the conduct of a coal breaking, processing, and sales business. A coal breaker, auxiliary buildings, machinery, equipment, fixtures and other chattels used in the operation were located on the tract. In addition, more than 494,000 cubic yards (almost 414,000 gross tons) of culm and silt, the residue of the coal processing activities containing 34.54% recoverable coal, had accumulated on the land. Soon after the filing of the Declaration of Taking, the Department asked the condemnees whether they intended to remove the accumulated culm and silt, and told them that if they did so intend they must do so within sixty days. Frank Seltzer replied for the brothers in writing that they would not

[ 18 Pa. Commw. Page 130]

    remove the "coal fines, and therefore they do not consider this material to be private property." At the trial below he testified that the condemnees could not move this quantity of material in sixty days. Thereafter, the Department engaged a contractor to remove and deposit the materials on other land. This took eight months.

A Board of viewers awarded condemnees total compensation of $900,000, broken down as $247,000 for land, $153,000 for the plant and other improvements, and $500,000 for "silt dams and other fine materials." The Department appealed the viewers' report to the Schuylkill County Court of Common Pleas.

Obviously, the parties had and have no disagreement over the compensability, as distinguished from the market value, of the land and buildings taken. They agreed that the machinery, equipment and fixtures located in the breaker and recorded on a list admitted into evidence and used by all valuation witnesses should be considered in the award of damages. They agreed that certain other items, such as trucks, a bulldozer, a shovel and certain machinery removed by the condemnees from one of the auxiliary buildings were not compensable.

The parties were and are in disagreement over the accumulation of culm and silt. The Commonwealth's contention at the trial was and still is that this material was mere personal property of the condemnees not taken by it in the condemnation. It requested moreover that the jury be instructed to determine whether the condemnees by declining to remove the 436,000 cubic yards of culm and silt had abandoned it and thus lost any interest therein for which they could be compensated. The Commonwealth nevertheless adduced expert opinion evidence, based on the cost of recovery of the remaining coal in the material, that the culm and silt in place was in fact without value. The condemnees urged and still urge that the case was one for the application of the Assembled Economic Unit Doctrine and that the culm and silt was

[ 18 Pa. Commw. Page 131]

    as a matter of law a fixture, whether fast or loose, for which they were, under that Doctrine, entitled to compensation. The condemnees adduced opinion evidence of witnesses of the value of the ...


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