decided: March 26, 1976.
GERALD D. YINGST AND MARY M. YINGST
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT
Appeal from the Order of the Court of Common Pleas of Dauphin County in case of Gerald D. Yingst and Mary M. Yingst, Condemnees v. Commonwealth of Pennsylvania, Department of Transportation, Condemnor, Nos. 535 and 626 January Term, 1975.
Lawrence R. Wieder, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellant.
Clyde W. McIntyre, with him Delano M. Lantz, and McNees, Wallace & Nurick, for appellees.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by Judge Rogers.
[ 24 Pa. Commw. Page 172]
The parties to these eminent domain proceedings, the Commonwealth's Department of Transportation, on the one hand, and Gerald D. Yingst and Mary M. Yingst, his wife, on the other, have been maneuvering for two years to get positions each believes most conducive to it for favorable resolution of a simple legal issue -- that of
[ 24 Pa. Commw. Page 173]
whether, where a husband conducts a business on several tracts of land, one of which is in the husband's and wife's names as tenants by entireties, and others titled in the husband's name alone, husband and wife are entitled to have damages to all tracts assessed as if all were one parcel as provided by Section 605 of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-605.*fn1
Five tracts of land located in Dauphin County were used by Gerald D. Yingst for the conduct of a mobile home sales business. Three were titled to Gerald D. Yingst, one was titled to Gerald D. Yingst and Mary M. Yingst, his wife, and one was leased by Gerald D. Yingst from another. The Commonwealth Department of Transportation in connection with a highway project filed two Declarations of Taking, one for a right-of-way over the tract owned by Gerald D. Yingst and Mary M. Yingst, and the second for fee simple title to two and an easement for right-of-way over one of the three tracts titled to Gerald D. Yingst. In addition, the Commonwealth purchased the tract which Gerald D. Yingst rented and notified him to vacate, with which notice he complied. As to the leased premises, it seems clear that the Commonwealth's purchase was in lieu of condemnation and that the notice to vacate was given in pursuance of the highway project and that a de facto taking of Yingst's leasehold interest was thereby effected.*fn2
[ 24 Pa. Commw. Page 174]
The Commonwealth, to Dauphin County Docket 535, January Term 1975, petitioned for the appointment of viewers for the three tracts owned by Mr. Yingst. The Yingsts, husband and wife, filed preliminary objections to this petition on the grounds, inter alia, that it did not include all of their tracts involved in the mobile home sales operation.
To Dauphin County Docket No. 626, January Term 1975, the Yingsts filed a petition and an amended petition for the appointment of viewers to assess damages for the formal taking of the four tracts owned by the Yingsts and for the assessment of damages for the condemnation of Mr. Yingst's leasehold interest in the fifth tract. The Commonwealth filed preliminary objections to this petition.
Next, the Yingsts filed a motion for consolidation into a single proceeding of both the Commonwealth's petition for viewers for the three tracts owned by Mr. Yingst (No. 535 January Term, 1975) and their petition for viewers to assess damages as to all tracts (No. 626 January Term, 1975).
The court below by two orders bearing the same date, (1) sustained the Yingsts' preliminary objections to the Commonwealth's petition for the appointment of viewers for the three tracts owned by Mr. Yingst (No. 535 January Term, 1975), and (2) overruled the Commonwealth's
[ 24 Pa. Commw. Page 175]
preliminary objections to the Yingsts' petition to appoint viewers to assess damages for all five tracts and granted the Yingsts' motion that viewers should be appointed to assess damages to all of the condemned parcels in a single proceeding (No. 626 January Term, 1975).
The Commonwealth thereupon appealed both orders to this Court.
Although the availability of the unity of use rule of Section 605 of the Eminent Domain Code was extensively briefed and presumably argued in the court below, no opinion was written. We have, therefore, no means of knowing whether the lower court concluded that the unity of use provision should apply despite the facts that one of the lots was owned by the Yingsts as tenants by the entireties and the others owned or, in one case, leased by Mr. Yingst alone, or whether the court merely consolidated the claims of Mr. Yingst on the one hand and Mr. and Mrs. Yingst on the other, for hearing by the viewers as separate claims to be assessed separately in a single proceeding. Nevertheless, the Commonwealth contends that the court's order implies that the unity of use rule is applicable although there are different owners. The Yingsts, on the contrary, state that the orders imply no such decision and that the consolidation effected by the court below was a mere invocation of Section 502(a)(5) of the Eminent Domain Code, 26 P.S. § 1-502(a), and our holding In re Condemnation of 2719 East Berkshire Street, 20 Pa. Commonwealth Ct. 601, 343 A.2d 67 (1975) that more than one landowner may join in a single petition for appointment of viewers for the assessment of damages to their separate properties arising out of a single act of condemnation. The Yingsts assert, therefore, that the issue of the application of the unity of use rule of Section 605 remains to be decided below. We are unable to make the inference suggested by the Commonwealth. It was clearly within the discretion
[ 24 Pa. Commw. Page 176]
of the court below to require that the cases be consolidated for the Board of View's hearing, leaving to the Board of View the decision in the first instance of whether the unity of use rule of Section 605 should be applied. We have concluded that we should assume that this is what the court intended. We point out that whatever the viewers decide is subject to review by the court below if an appeal from the report of the viewers raising an objection of law is taken pursuant to Section 515 of the Eminent Domain Code, 26 P.S. § 1-515.
We therefore affirm the orders of the court below and remand the record for further proceedings.
Affirmed. Case remanded.