Steven & Lee, Calvin E. Smith, Charles H. Weidner, Reading, for appellants.
Lawrence R. Wieder, Asst. Atty. Gen., for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.
In this appeal we are asked to decide the narrow question whether § 610 of the Eminent Domain Code, which
allows condemnees a limited reimbursement for appraisal expenses, is applicable to a case wherein the condemnation was effectuated prior to the effective date of § 610, but the expenses were incurred after that date. The Commonwealth Court, reversing the trial court, answered this question in the negative. Department of Transportation v. Gehris, 19 Pa. Commw. 287, 339 A.2d 639 (1975). We granted the condemnees' petition for leave to appeal, and now reverse the order of the Commonwealth Court.
The facts are not disputed. On September 21, 1970, an approximate one-half acre tract in Muhlenberg Township, Berks County, was condemned by the Department of Transportation [hereinafter "Department"] for highway improvement purposes. Compensation of $7,900 was tendered to the owner-condemnees, Harry M. and Anna E. Gehris, appellants herein, on December 1, 1970. Thereafter, on October 3, 1973, a board of viewers appointed on a petition by appellants filed a report awarding damages of $27,500. The Department appealed this award to the court of common pleas, and following a jury trial, a verdict was returned in condemnees' favor in the sum of $26,000 plus damages for detention. The parties stipulated that the condemnees had expended in excess of $500 in appraisal expenses and that they had incurred these expenses subsequent to December 29, 1971, the effective date of § 610. The trial judge thereupon molded the verdict to include appraisal expenses of $500, the maximum allowed by the statute. The Department moved to strike the portion of the verdict representing appraisal fee reimbursement, and the court en banc denied the motion. On Appeal, this order was reversed by the Commonwealth Court.*fn1
The Eminent Domain Code [hereinafter "Code"], originally enacted in 1964, was amended in 1971 to add § 610, which states:
"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 sections 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." Act of June 22, 1964, Special Sess., P.L. 84, as added by Act of December 29, 1971, P.L. 640, No. 169, § 7, 26 P.S. § 1-610 (Supp.1976-77).*fn2
Based upon the simple directive of § 11 of the 1971 amendatory act that "[t]his act shall take effect immediately," appellants urge that § 610 is applicable to any case wherein, as here, the expenses specified in that section are incurred after the effective date of the act, December 29, 1971, regardless of when the condemnation (i. e., filing of a declaration of taking)*fn3 was effected. The Department responds to this contention with two basic arguments: (1) to apply § 610 to this case would contravene the principle that statutes are not to be construed to operate retroactively; (2) under applicable principles of statutory construction, it is ascertainable that the intention of the ...