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EDWARD C. BENEK AND MARGARET M. BENEK v. COMMONWEALTH PENNSYLVANIA (01/25/80)

decided: January 25, 1980.

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



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 et ux., No. A.D. 114 September Term, 1967.

COUNSEL

Lee C. McCandless, with him McCandless & Krizner, for appellants.

Richard L. McCandless, with him Dillon, McCandless, King & Kimper, for appellee.

Judges Crumlish, Jr., Mencer, DiSalle, Craig and MacPhail. President Judge Bowman and Judges Wilkinson, Jr., Rogers and Blatt did not participate. Opinion by Judge MacPhail. This decision was reached prior to the expiration of the term of office of Judge DiSalle.

Author: Macphail

[ 49 Pa. Commw. Page 64]

This is an appeal from an order of the Court of Common Pleas of Butler County, en banc, dismissing the exceptions of Mr. and Mrs. Edward Benek (Beneks) to the Court's non-jury verdict awarding damages to the Beneks in the sum of $25,500.00 plus reimbursement of $500.00 as a payment toward reasonable appraisal and attorney's fees in an eminent domain case.

The Beneks raised two issues in this appeal. The first concerns the allegedly fatal procedural defects employed by the Pennsylvania Game Commission (Commission) with respect to the taking and the second issue involves an alleged trial error. The case has been before us on a previous occasion. Pennsylvania Game Commission v. Benek, 32 Commonwealth Ct. 133, 378 A.2d 497 (1977). To borrow a phrase from the trial judge, the case had had a "checkered history."

Most of the critical facts pertaining to the procedural issue are not in dispute. On June 2, 1967, the Commission adopted a resolution condemning a fee simple interest in the subject tract. On July 13, 1967, a declaration of taking was filed in the name of the Commission, by its executive director, condemning the surface of the subject tract only. Notice of the filing of the declaration was not given to the Beneks until October 24, 1967. On November 1, 1967, the Commission filed a proof of service on the Beneks but failed to attach a copy of the notice of the declaration of taking. The Commission attempted to remedy this omission later in the proceedings and did offer the testimony

[ 49 Pa. Commw. Page 65]

    of an employee that she sent the notice to the Beneks and that when she sent out similar notices she always included the notice that the condemnees had thirty days to object to the declaration of taking. The Beneks maintain that they never received the notice of their right to object. The Beneks also contend that the notice to them indicated that the entire fee was being condemned.

Notwithstanding these complaints, the Beneks did nothing, whereupon the Commission filed a petition for the appointment of a Board of View (Board). The Beneks, then represented by counsel, appeared and participated in that hearing. The Board's report awarded damages to the Beneks in the amount of $28,000.00, "which includes damages to the coal." The Beneks took an appeal from that award alleging only that the award was inadequate.

The Commission then filed a petition for a rule to show cause why a writ of possession should not issue. In answer thereto, on March 29, 1971, the Beneks raised for the first time the validity of the taking,*fn1 citing specifically the variance between the interest condemned in the Commission's resolution and the interest condemned in the declaration of taking.

On May 10, 1973, the trial court resolved the issue then before it on the petition and answer thereto by holding that the Beneks waived their right to object to the validity of the taking because they had failed to file preliminary objections as required by Section 406 of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. ยง 1-406. In its order, the court also directed that the ...


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