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MATTER CONDEMNATION RIGHTS WAY AND EASEMENTS SITUATED TOWNSHIP NORTH HUNTINGDON AND TOWNSHIP HEMPFIELD v. NORTH HUNTINGDON TOWNSHIP MUNICIPAL AUTHORITY (07/03/79)

decided: July 3, 1979.

IN THE MATTER OF: CONDEMNATION OF RIGHTS OF WAY AND EASEMENTS SITUATED IN THE TOWNSHIP OF NORTH HUNTINGDON AND THE TOWNSHIP OF HEMPFIELD, ETC. ANTHONY BROOKS, JR. ET UX., APPELLANTS
v.
THE NORTH HUNTINGDON TOWNSHIP MUNICIPAL AUTHORITY, APPELLEE. IN THE MATTER OF: CONDEMNATION OF RIGHTS OF WAY AND EASEMENTS SITUATE IN THE TOWNSHIP OF NORTH HUNTINGDON AND THE TOWNSHIP OF HEMPFIELD, ETC. PALMETTO HOME BUILDERS, INC., APPELLANT V. THE NORTH HUNTINGDON TOWNSHIP MUNICIPAL AUTHORITY, APPELLEE



Appeals from the Order of the Court of Common Pleas of Westmoreland County in case of In the Matter of: Condemnation of Rights of Way and Easements situate in the Township of North Huntingdon and the Township of Hempfield, County of Westmoreland, Commonwealth of Pennsylvania by the North Huntingdon Township Municipal Authority for Sewerage Purposes; Anthony Brooks, Jr. and Janet S. Brooks, his wife v. The North Huntingdon Township Municipal Authority; Palmetto Home Builders, Inc. v. The North Huntingdon Township Municipal Authority, No. 2525 of 1976.

COUNSEL

William P. Bresnahan, with him Edward C. Milburn, and O'Donnell, Bresnahan, Caputo & Capristo, for appellants.

Donald J. Snyder, Jr., with him Costello & Berk, for appellee.

Judges Wilkinson, Jr., Blatt and DiSalle, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 44 Pa. Commw. Page 31]

The facts in this appeal*fn1 are not in dispute. On August 13, 1976, pursuant to an earlier authorizing resolution, North Huntingdon Township Municipal Authority (Authority) filed a declaration of taking which condemned certain rights of way and easements on property belonging to appellants and others for the construction of a sanitary sewer system.

Sometime after the completion of construction the Authority discovered that some of the facilities installed had not been placed as indicated on the original right of way maps accompanying the declaration of taking. The Authority on August 15, 1978 sought to correct the discrepancies by filing a "Declaration of Relinquishment of Condemnation" seeking to revest in the affected condemnees the unoccupied rights of way taken in 1976 and an "Amended Declaration of Taking" which attempted to condemn the rights of way necessary to accommodate the already completed construction.

The Court of Common Pleas of Westmoreland County, sitting en banc, dismissed the appellants' preliminary objections to both of the Authority's petitions. We reverse.

For our discussion we start with the recognition that the Legislature intended to provide, in the Eminent Domain Code (Code),*fn2 "a complete and exclusive procedure and law to govern all condemnations of property for public purposes. . . ." Section 303 of the Code, 26 P.S. § 1-303.

[ 44 Pa. Commw. Page 32]

The disposition of the Authority's attempted relinquishment is governed by specific statutory language. Section 408 of the Code, 26 P.S. § 1-408 unambiguously provides that "[t]he condemnor, by filing a declaration of relinquishment in court within one year from the filing of the declaration of taking, . . . may relinquish all or any part of the property condemned that it has not taken actual possession of for use in the improvement. . . ." (Emphasis added.) The common pleas court's ruling on the preliminary objections to the Authority's purported Declaration of Relinquishment of Condemnation was therefore erroneous; we reverse and sustain those preliminary objections.

In contrast to the Authority's tardy effort to relinquish, the Code offers no opportunity at all for the filing of an "Amended Declaration of Taking." The Authority, however, confidently argues that the mechanism to amend a declaration of taking exists independently of the Code.

Two cases are principally relied upon by the Authority to support this thesis. In the first, Peoples Natural Gas Company Appeal, 399 Pa. 226, 160 A.2d 391 (1960), the Supreme Court in a plurality opinion allowed the utility to amend the documentary description of the condemned premises accompanying its bond. The gas company's engineer surveyed the subject property and marked off the right of way by driving wooden stakes into the ground at regular intervals. It was after completion of this phase of his task, while drawing up a description of the line for condemnation purposes, that an error was made ...


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