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NANTICOKE PUBLIC SERVICE COMPANY v. REDEVELOPMENT AUTHORITY LUZERNE COUNTY (03/05/79)

decided: March 5, 1979.

NANTICOKE PUBLIC SERVICE COMPANY, INC., APPELLANT
v.
THE REDEVELOPMENT AUTHORITY OF LUZERNE COUNTY, PENNA., APPELLEE



Appeal from the Order of the Court of Common Pleas of Luzerne County in case of Nanticoke Public Service Company, Inc. v. The Redevelopment Authority of Luzerne County, No. 6600 of 1975.

COUNSEL

Gifford Cappellini, for appellant.

Allen T. Reishtein, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Blatt, DiSalle and Craig. Judges Rogers and MacPhail did not participate. Opinion by Judge Craig. Dissenting Opinion by President Judge Bowman.

Author: Craig

[ 41 Pa. Commw. Page 75]

Nanticoke Public Service Co. (condemnee) appeals from a decision of the Luzerne County Court of Common Pleas which denied the motion of the Redevelopment

[ 41 Pa. Commw. Page 76]

Authority of Luzerne County (condemnor) for a new trial but awarded condemnor a set-off against the amount of a jury's condemnation award.

The condemnor had filed a declaration of taking against condemnee's entire parcel of improved realty on August 5, 1975 and had paid estimated just compensation in the amount of $47,550.00 on December 17, 1975. From a subsequent board of view's award of $62,000.00 both parties appealed. A jury trial resulted in a verdict of $65,000.00 against condemnor.

The condemnor then filed a motion for a new trial on the ground that the trial judge improperly excluded evidence of the fair value of the property in the form of a proposed occupancy agreement which the condemnor had tendered to the condemnee; the evidence offer was for the purpose of establishing a set-off against any award, based on a claim of rent for condemnee's continuing possession.

The court denied the motion for a new trial but did grant condemnor a rental set-off against the condemnee's damage award in the amount of $400.00 per month until condemnee's possession ends. The parties have stipulated that the $400.00 rate is a fair rental value.

In its appeal from that order, the condemnee contends that the rental set-off against its condemnation award is in direct violation of Section 611 of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. ยง 1-611 (Code), which states 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, nor during such period shall a condemnor be entitled to rent or other charges for use and ...


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