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COMMONWEALTH PENNSYLVANIA v. HARRY M. GEHRIS AND ANNE E. GEHRIS (05/22/75)

decided: May 22, 1975.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT,
v.
HARRY M. GEHRIS AND ANNE E. GEHRIS, HIS WIFE, APPELLEES



Appeal from the Order of the Court of Common Pleas of Berks County in case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, of right of way for Legislative Route 160, Section A-17, Deed Book 980, Page 12 and Deed Book 941, Page 63. Harry M. and Anna E. Gehris, h/w, v. Commonwealth of Pennsylvania, Department of Transportation, No. 71 April Term, 1973.

COUNSEL

Lawrence R. Wieder, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for appellant.

Charles H. Weidner, with him Calvin E. Smith and Stevens & Lee, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Mencer, Rogers and Blatt. Judge Wilkinson, Jr., did not participate. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 19 Pa. Commw. Page 289]

In Patterson v. County of Allegheny, 15 Pa. Commonwealth Ct. 228, 325 A.2d 484 (1974), this Court, sitting as a panel of three judges, held that Section 610 of the Eminent Domain Code*fn1 (the Code), which provides a limited reimbursement of appraisal, attorney and engineering fees, was to be applied prospectively to condemnations effected on or after December 29, 1971, the effective date of that section. This appeal involves the same question.

On September 21, 1970, the Pennsylvania Department of Highways (now the Department of Transportation and hereinafter referred to as the Commonwealth) condemned .436 acres of property owned by Harry M. and Anna E. Gehris (Appellees) in Muhlenberg Township, Berks County, for highway improvement purposes, and tendered estimated just compensation of $7,900 on December 1, 1970. The board of viewers appointed on Appellees' petition subsequently awarded Appellees $27,500.00 plus detention damages, and the Commonwealth appealed this award to the Court of Common Pleas of Berks County. Following a jury trial, a verdict was returned in favor of Appellees in the sum of $26,000.00, and the trial judge thereafter molded the verdict to allow the maximum reimbursement for Appellees' appraisal fees under Section 610 of the Code. The parties stipulated in the court below that these appraisal expenses exceeded the $500.00 allowed by Section 610 and were incurred subsequent to the effective date of that section. The Commonwealth's motion to strike that portion of the verdict which was molded to include appraisal fees was denied by the lower court en banc without the benefit of our decision

[ 19 Pa. Commw. Page 290]

    in Patterson v. County of Allegheny, supra, and this appeal followed.*fn2 Appellees ask that we either distinguish or reconsider our decision in Patterson. We have reviewed the bases of our decision there and find it to be firmly supported and controlling of the instant appeal.

Section 610 provides:

"The owner of any right, title or interest in real property acquired or injured by an acquiring agency, who is not eligible for reimbursement of such fees under section 406(e), 408 or 609 of this act, shall be reimbursed in an amount not to exceed five hundred dollars ($500) as a payment toward reasonable expenses actually incurred for appraisal, attorney and engineering fees."

This provision, together with the other amendments to the Code in 1971, was given immediate effect on the date of their approval, December 29, 1971. Act of December 29, 1971, P.L. 635, § 11. The contrast between the language of § 11 and that of § 3 of the amendatory Act of December 5, 1969, P.L. 316, providing "[t]his act shall take effect immediately and shall apply to all condemnation proceedings effected thereafter, . . ." has created some uncertainty of whether the Legislature intended to give the 1971 amendments retroactive effect to condemnations occurring before its effective date. See Snitzer, Pennsylvania Eminent Domain, § 302 (1973 Cum. Supp.). This uncertainty was to some extent clarified by the Note of the Joint State Commission to Section 302 of the Code, 26 P.S. § 1-302, declaring that "[t]he amendatory ...


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