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BENJAMIN AND FANNIE KELLMAN TRUST FUND v. COMMONWEALTH PENNSYLVANIA (03/18/76)

decided: March 18, 1976.

BENJAMIN AND FANNIE KELLMAN TRUST FUND, DART SUPPLY, INC., AND HARRY J. TUECHE
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION. BENJAMIN AND FANNIE KELLMAN TRUST FUND, APPELLANT



Appeal from the Order of the Court of Common Pleas of Westmoreland County in case of Benjamin and Fannie Kellman Trust Fund, Dart Supply, Inc. and Harry Tueche v. Commonwealth of Pennsylvania, Department of Transportation, Nos. 18 April Term 1971, 897 April Term 1971 and 3 January Term, 1972.

COUNSEL

George J. Morgan, with him Roda, Morgan, Hallgren & Heinly, for appellant.

John M. Campfield, with him A. C. Scales, and Scales and Shaw for appellee, Dart Supply, Inc.

Bernard S. Shire, with him Shire, Bergstein & Caruso, for appellee, Tueche.

David Ward Murphy, Special Assistant Attorney General, for Commonwealth.

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

Author: Mencer

[ 24 Pa. Commw. Page 104]

The Benjamin and Fannie Kellman Trust Fund (Kellman) raises before this Court an issue concerning the entitlement of its lessees, Dart Supply, Inc. (Dart) and Harry J. Tueche (Tueche), to an award for bonus value damages in a condemnation proceeding instituted by the Commonwealth. Although the facts concerning the bonus value issue are not really disputed, the complicated procedural history of this case has raised a good deal of confusion in the minds of the litigants. Therefore, after carefully reviewing the record in this case, we set forth in some detail the circumstances surrounding this appeal.

On April 6, 1971, the Commonwealth of Pennsylvania, for the use of its Department of Transportation, filed a declaration of taking against a tract of land, with improvements erected thereon, situate in the Township of Rostraver, Westmoreland County. The tract was owned by the appellant Kellman which had leased parts thereof to appellees Dart and Tueche. On March 15, 1973, the board of viewers (board) filed its report awarding damages of $68,200 to Dart, $37,500 to Tueche, and $165,000 to Kellman. All three condemnees timely appealed this report to the Court of Common Pleas of Westmoreland County, alleging, as the sole reason for their respective appeals, the inadequacy of the amount of the board's

[ 24 Pa. Commw. Page 105]

    awards. On April 16, 1973, Tueche amended his appeal*fn1 by adding a more specific objection concerning the assessment of the improvements to his leasehold and by demanding a pretrial conference and ruling by the court to determine these issues of law prior to trial.

The Commonwealth also filed timely objections to the board's report. In addition to demanding a jury trial de novo, the Commonwealth objected to the failure of the report to comply with Section 511(7) of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-511(7), which requires, when there are several interests in a condemned property, that the board set forth, in a brief and concise paragraph, the total damages and the distribution thereof between or among the several claimants. Subsequently, the Commonwealth also filed a request pursuant to Section 507 of the Code, 26 P.S. § 1-507, to consolidate the claims of the respective parties for eventual trial.

The Court of Common Pleas, sitting en banc, issued an order remanding the report to the board solely to correct the technical Section 511(7) deficiency. The Court also, by a separate order filed on the same day, refused Kellman's motion opposing the Commonwealth's request for consolidation.*fn2 Neither opinion discussed Tueche's amended appeal and there was no appeal taken from either order. At this point various docket entries imply that all parties were making preparation for trial de novo. During this period between remand and eventual reissuance of the board's report, Kellman filed with the board an extensive "Request for Findings of Fact and Conclusions of Law."

[ 24 Pa. Commw. Page 106]

On December 23, 1974, the board filed its amended or supplemental report which, as its only change, merely added together the original three separate awards to the condemnees, thereby curing the technical Section 511(7) defect. No mention was made of Kellman's request for findings or of Tueche's undisposed objections.

All parties to the litigation appealed from that supplemental report. In its appeal, Kellman additionally alleged that the board was in error in failing to rule on Kellman's "Request for Findings of Fact and Conclusions of Law," in failing to state a date from which detention damages would be paid, and in finding damages due Tueche and Dart. Kellman's new appeal also raised Kellman's former assertion regarding the inadequacy of the award of damages and requested a pretrial conference and ruling to determine the legal issues prior to trial.

Again all parties proceeded with preparations for the eventual trial de novo. Briefs were filed concerning the legal issues to be resolved before the trial, and the requested pretrial conference was held before Judge McCormick.

Judge McCormick subsequently issued an "Opinion and Pre-Trial Order" which purported to consider the issues raised by the various parties in their respective appeals from the two reports of the board. In his opinion, Judge McCormick rejected Kellman's objections to the supplemental report as being untimely and improperly made.*fn3 Nevertheless, the lower court considered the issue of bonus value as having been properly raised by Tueche's appeal from the supplemental report of the board.*fn4 After

[ 24 Pa. Commw. Page 107]

    discussing that issue at some length, Judge McCormick ordered the case to trial with Dart and Tueche being allowed to offer evidence as to the bonus value of their condemned leasehold interests. See Sections 601, 602 of the Code, 26 P.S. §§ 1-601, 1-602. It is from that order that Kellman brought its appeal to this Court.

Kellman raises as its sole issue before this Court the question of the entitlement of Dart and Tueche to bonus value damages. In their response to Kellman's appeal, Tueche and Dart contend, in addition to arguing for affirmance of the lower court on the substantive issue of bonus value, that this Court lacks jurisdiction over the appeal because the order appealed from was not a "final order" as required by law and that Kellman has waived its right to raise objections other than to the amount of the award because of its failure to timely raise those additional objections subsequent to the first report of the board.*fn5

Turning then to a resolution of these issues,*fn6 we find Section 402 of the Appellate Court Jurisdiction Act of

[ 24 Pa. Commw. Page 1081970]

, Act of July 31, 1970, P.L. 673, as amended, 17 P.S. § 211.402, to be especially pertinent to our discussion of the procedural aspects of this case. It provides in part:

"The Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in any of the following cases, except such classes of appeals as are by section 202 of this act [17 P.S. § 211-202] within the exclusive jurisdiction of the Supreme Court:

"(6) All proceedings arising under the Eminent Domain Code [26 P.S. § 1-101 et seq.] or where there is drawn in question the power or right of a condemnor to ...


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