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KATHRYN M. HASSETT v. COMMONWEALTH PENNSYLVANIA (03/27/78)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 27, 1978.

KATHRYN M. HASSETT, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT. (2 CASES)

Appeals from the Order of the Court of Common Pleas of Delaware County in case of Kathryn Hassett v. Commonwealth of Pennsylvania, Department of Transportation, No. 5846 of 1975.

COUNSEL

Robert E. Slota, with him Murphy and Slota, for appellant.

Michael L. Brint, Special Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers, Blatt and DiSalle. Opinion by Judge Blatt.

Author: Blatt

[ 34 Pa. Commw. Page 369]

Kathryn M. Hassett (condemnee) appeals here from an order of the Court of Common Pleas of Delaware County which denied her request that she be paid delay compensation from the date her property was condemned by the Pennsylvania Public Utility Commission (PUC).

The property here concerned was condemned by order of the PUC on October 31, 1969 for use in the construction of an interstate highway project. In November 1975 the determination of damages due the

[ 34 Pa. Commw. Page 370]

    condemnee was submitted at the condemnee's request to the court of common pleas pursuant to Section 411 of the Public Utility Law*fn1 (Law), 66 P.S. § 1181, and she made motions there both for summary judgment and for judgment on the pleadings seeking delay compensation from the date of condemnation by the PUC to the date of payment of just compensation. The court denied both motions, holding that the determination of damages due the condemnee was controlled by Article VI of the Eminent Domain Code*fn2 (Code) and that, because the condemnee had remained in possession of the property since the date of condemnation, delay compensation was not available to her. This appeal followed.

There are no facts in dispute. The sole legal issue presented here is what is the law to be applied for the determination of damages when an eminent domain case is referred from the PUC to the court of common pleas pursuant to Section 411 of the Law, 66 P.S. § 1181. The condemnee argues that, because the taking was effected under Section 409 of the Public Utility Law, 66 P.S. § 1179 and not under the Eminent Domain Code, the Eminent Domain Code does not apply to the proceeding and the pre-code common law applies with respect to delay compensation payable to the condemnee. See, e.g., Stine v. Department of Transportation, 26 Pa. Commonwealth Ct. 292, 364 A.2d 745 (1976). We disagree.

Section 303 of the Eminent Domain Code, 26 P.S. § 1-303, provides in pertinent part:

It is intended by this act to provide a complete and exclusive procedure and law to govern all condemnations of property for public purposes

[ 34 Pa. Commw. Page 371]

    and exclusive procedure to govern the assessment of damages for all condemnations of property for public purposes.*fn3 The arguments of the condemnee to the contrary are unpersuasive.

Section 611 of the Eminent Domain Code, 26 P.S. § 1-611, concerns the payment of delay compensation and provides in pertinent part:

The condemnee shall not be entitled to compensation for delay in payment during the period he remains in possession after the condemnation. . . .

It is undisputed here that condemnee has remained in possession of the property ever since it was condemned by the PUC. She is, therefore, ineligible for delay compensation under Section 611 of the Code. See County of Bucks v. .800 Acres of Land in Middletown Township, 32 Pa. Commonwealth Ct. 448, 379 A.2d 903 (1977); Commonwealth v. Upholzer, 18 Pa. Commonwealth Ct. 102, 334 A.2d 812 (1975); Govatos v. Redevelopment Authority of the County of Montgomery, 11 Pa. Commonwealth Ct. 529, 314 A.2d 536 (1974).

The condemnee argues finally that if the Eminent Domain Code applies here, the date of taking of her property for purposes of valuation should not be the date of the PUC's condemnation order but rather the date upon which the PUC referred the matter to the court. Again we disagree. Section 602(a) of the Eminent Domain Code, 26 P.S. § 1-602(a), clearly provides that just compensation due a condemnee must be calculated with reference to the date of condemnation. The date of condemnation here is clearly the date of the PUC's order.

[ 34 Pa. Commw. Page 373]

The order of the lower court is affirmed.

Order

And Now, this 27th day of March, 1978, the order of the Court of Common Pleas of Delaware County, numbered 5846 of 1975 and dated January 25, 1977, is hereby affirmed.

Disposition

Affirmed.


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