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TOWNSHIP CHESTER v. COMMONWEALTH PENNSYLVANIA (05/24/78)

decided: May 24, 1978.

TOWNSHIP OF CHESTER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT



Appeal from the Order of the Court of Common Pleas of Delaware County in case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation of Right-of-Way, for Legislative Route 1080, Section A05, R/W, Also Known as Legislative Route 1018 Spur F-A05, a Limited Access Highway in Chester Township and the City of Chester. Township of Chester v. Commonwealth of Pennsylvania, Department of Transportation, No. 7973 of 1973.

COUNSEL

Martin Burman, with him Michael L. Brint, Special Assistant Attorney General, George Bristol, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General-Chief Counsel, and Robert P. Kane, Attorney General, for appellant.

Peter J. Nolan, for appellee.

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

Author: Mencer

[ 35 Pa. Commw. Page 467]

The Township of Chester, condemnee, owns and operates a low-income public-housing complex containing 150 housing units. The Commonwealth of Pennsylvania, condemnor, filed a declaration of taking wherein it condemned a portion of the complex comprising 32 housing units. A hearing to establish the compensation due was held before a board of viewers which awarded to the Township the cost of constructing a new building to replace the lost units. The Court of Common Pleas of Delaware County affirmed the award of the board of viewers, and this appeal followed. We hold that compensation was improperly computed and remand for a determination of fair market value in accordance with the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-101 et seq.

There is no dispute that the Township is entitled to receive "just compensation" for the property which is being condemned.

'"[J]ust compensation" means the full monetary equivalent of the property taken. The owner is to be put in the same position monetarily as he would have occupied if his property had not been taken.' . . . To determine such monetary equivalence, the [United States Supreme] Court early established the concept of 'market value': the owner is entitled to the fair market value of his property at the time of the taking. (Citations omitted.)

Almota Farmers Elevator & Warehouse Co. v. United States, 409 U.S. 470, 473-74 (1973).

[ 35 Pa. Commw. Page 468]

"For more than a century it has been consistently held by [the Pennsylvania Supreme] Court that in condemnation cases the measure of damages is based upon fair market value." Pennsylvania Gas & Water Co. v. Pennsylvania Turnpike Commission, 428 Pa. 74, 82, 236 A.2d 112, 116 (1967). The fair-market-value measure of just compensation has now been incorporated into Section 602(a) of the Eminent Domain Code, 26 P.S. § 1-602(a), and is the only measure of compensation provided for by the Code.*fn1

The Township cites only one Pennsylvania case to support its contention that it should be allowed to recover the cost of constructing a new building rather than being limited to the fair market value of the condemned structure.*fn2 Pennsylvania Gas & Water Co., supra, involved land which had a unique character as reservoir property and for which no market in the classic sense existed. In what it characterized as a "sharp departure" from the traditional measure of damages, 428 Pa. at 83, 236 A.2d at 117, the Court in that case allowed the condemnee to recover the cost of acquiring substitute land.

Here, there is no indication that the housing units involved are in any way unique in character, except for the fact that they are owned and operated by a ...


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