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COMMONWEALTH PENNSYLVANIA v. EDWARD C. BENEK AND MARGARET M. BENEK (10/12/77)

decided: October 12, 1977.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA GAME COMMISSION
v.
EDWARD C. BENEK AND MARGARET M. BENEK, APPELLANTS



Appeal from the Order of the Court of Common Pleas of Butler County in case of Commonwealth of Pennsylvania, Pennsylvania Game Commission v. Edward C. Benek and Margaret M. Benek, A.D. No. 114 September Term, 1967.

COUNSEL

Leo M. Stepanian, with him Brydon & Stepanian; Lee C. McCandless ; and McCandless, Krizner & Kemper, for appellants.

Richard L. McCandless, with him Coulter, Gilchrist, Dillon & McCandless, for appellee.

Judges Crumlish, Jr., Wilkinson, Jr. and Blatt, sitting as a panel of three. Judge Kramer did not participate in the decision. Opinion by Judge Crumlish, Jr. Judge Kramer did not participate in the decision in this case.

Author: Crumlish

[ 32 Pa. Commw. Page 134]

Edward C. Benek and Margaret M. Benek, his wife (Beneks) have appealed a verdict (with no entry

[ 32 Pa. Commw. Page 135]

    of judgment) from that portion of a bifurcated eminent domain proceeding which adjudged that there had been no de facto taking of mineral rights below surface lands condemned by the Pennsylvania Game Commission (Commission).

On July 13, 1967, Commission filed a declaration of taking against Beneks condemning "the surface only" of a 241.4-acre tract of land located in Washington and Concord Townships, Butler County, Pennsylvania, despite the fact that the resolution of the Commission authorized the taking of a "fee simple." On November 1, 1967, proof of service on Beneks was filed showing both were served with a copy of the declaration of taking by certified mail, return receipt, on October 24, 1967. It is disputed whether Beneks also received notice that they had 30 days to file preliminary objections to the declaration of taking as is required by the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-405. Within a week of said service, Beneks retained counsel in the case. On December 12, 1967, there having been no preliminary objections filed, the Commission filed a petition for appointment of a board of view which was thereafter duly appointed. A view and hearing were held with Beneks being represented by counsel. From a report of the board of view filed January 10, 1969, Beneks filed an appeal on January 22, 1969, "for the reason that the award of said viewers for the damages of reconstruction, relocation and improvement is insufficient and inadequate." No preliminary objections have ever been filed by Beneks in this case.

The Commission filed a petition for rule to show cause why a writ of possession should not issue against Beneks for the premises on March 23, 1971, and in answer to the rule, Beneks, for the first time, raised the issue of the validity of the taking based upon the

[ 32 Pa. Commw. Page 136]

    discrepancy between the resolution authorizing the condemnation and the declaration of taking. After several pre-trial conferences and filing of briefs, the court below held on May 10, 1973, that Beneks waived their right to object to the validity of the taking by failing to file preliminary objections under Section 406 of the Code, 26 P.S. § 1-406. However, the court further held that Beneks at trial had the right to prove the taking of the surface rendered the coal inaccessible and, if proven, the condemnees could be compensated as if the coal had also been taken. It was further held that a non-jury trial was proper since Beneks had failed to request a jury trial.

Beneks also raised the issue of the legal sufficiency of the notice they had received in 1967, but after an evidentiary hearing, by order of the court dated August 5, 1974, the issue of the legality of notice was dismissed. No appeal was taken from the orders of May 10, 1973 and August 5, 1974. A trial was then held at which time ...


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