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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA (03/11/76)

decided: March 11, 1976.

IN RE: CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, OF RIGHT OF WAY FOR LEGISLATIVE ROUTE 1016, SECTION 11B, A LIMITED ACCESS HIGHWAY IN GLENFIELD BOROUGH, ALLEGHENY COUNTY, PENNSYLVANIA. GREGG H. JONES AND ESSIE JONES, HIS WIFE. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT


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 1016, Section 11B, a Limited Access Highway in Glenfield Borough, Allegheny County, Pennsylvania. Gregg H. Jones and Essie Jones, his wife v. Commonwealth of Pennsylvania, Department of Transportation, No. 676 July Term, 1973.

COUNSEL

Benjamin B. Wechsler, Special Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellant.

Leonard M. Mendelson, with him Hollinshead and Mendelson, for appellees.

Judges Crumlish, Jr., Kramer and Mencer, sitting as a panel of three. Opinion by Judge Kramer.

Author: Kramer

[ 23 Pa. Commw. Page 653]

This is an appeal by the Department of Transportation (condemnor) from an order of the Court of Common Pleas of Allegheny County, dated February 3, 1975, which ordered that the condemnor pay to Gregg H. Jones and Essie Jones (condemnees) $22,500 for the value of condemned property and $4,500 as a replacement housing supplement. The question we must decide is whether, under the facts of this case, the $4,500 housing supplement should be deducted from the general award of $22,500. We hold that such a deduction is required and reverse.

The parties filed a joint petition with the trial court which set forth an agreed stipulation of facts and requested the resolution of a purely legal question. The stipulation provides the following relevant facts.

The condemnees were the owners of a tract of land and home which were the object of a de facto taking by the condemnor. Possession was relinquished on March 17, 1970 and, sometime in 1970, the condemnees were paid estimated just compensation of $13,250. In addition to this sum, and pursuant to the then Section 615 of the

[ 23 Pa. Commw. Page 654]

Eminent Domain Code,*fn1 the condemnor determined that the condemnees were entitled to $3,500 as a housing supplement. This amount was fixed as a result of the condemnor's determination of the average market price of dwellings comparable to the one taken from the condemnees. In this respect, Section 615 provided as follows:

"In addition to amounts of damages otherwise authorized, the condemnor shall, as is hereinafter provided, make a payment to the condemnee whose real property is improved by a single, two, or three-family dwelling actually owned and occupied by the condemnee for not less than one year prior to the condemnation. Such payment, not to exceed five thousand dollars ($5,000), shall be the amount, if any, which, when added to the acquisition payment, equals the average price required for a comparable dwelling determined to be a decent, safe and sanitary dwelling adequate to accommodate the condemnee, reasonably accessible to public services and places of employment and available on the private market." (Emphasis added.)

The $3,500 was revised on May 21, 1970, after an appeal to "an Appeal Board of the Department of Transportation." Condemnees were paid a housing supplement of $4,500 based upon a determination that comparable replacement housing would cost $17,750, and not $16,600 as had been originally determined.

At the time they accepted payment of the $4,500 the condemnees signed a document entitled "CLAIM FOR PAYMENT / REPLACEMENT HOUSING SUPPLEMENT" which, inter alia, ...


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