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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA (11/07/80)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 7, 1980.

IN RE: CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, OF RIGHT-OF-WAY FOR LEGISLATIVE ROUTE 02302 ETC. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT

Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, of Right-of-Way for Legislative Route 02302, Section 3T R/W, A Limited Access Highway in Ross Township v. N.H. Weidner, Inc. Owner of Property Identified on Commonwealth Plans as Parcel No. 37A and 37B, No. 1477 January Term, 1975, Sur No. 3041 April Term, 1974.

COUNSEL

Jeffrey L. Giltenboth, Special Assistant Attorney General, with him Ward T. Williams, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for appellant.

William P. Bresnahan, O'Donnell, Bresnahan, Caputo & Capristo, for appellees, Samuel J. Alioto & Anne K. Alioto, his wife.

Samuel P. Kamin, Kamin & Mandell, for appellee, Jack Berman, trading as Valet Boy Cleaners.

William H. Markus, with him Leonard M. Mendelson, Hollinshead & Mendelson, for appellee, Jerome Danenberg, trading as Berkeley Hills Pharmacy.

Judges Wilkinson, Jr., Craig and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams, Jr.

[ 54 Pa. Commw. Page 479]

The Pennsylvania Department of Transportation (Department) has appealed from an order of the Court of Common Pleas of Allegheny County quashing

[ 54 Pa. Commw. Page 480]

    part of the Department's appeal from a viewers' report in an eminent domain proceeding. The lower court concluded that the Department's appeal did not comply with the requirements of Section 516(a) of the Eminent Domain Code (Code)*fn1 insofar as two tenants and the co-owners of an easement were concerned; and the lower court entered final judgment in favor of each of those claimants on motion.

In March 1974, the Department filed a declaration of taking to condemn a portion of land owned in fee simple by N.H. Weidner, Inc.*fn2 The land is located in Ross Township, Allegheny County, and was condemned for highway purposes.

In November 1974, the fee owners petitioned for the appointment of a board of viewers, and designated as other interests in the property the leasehold of a Jack Berman, trading as "Valet Boy Cleaners", and the leasehold of a Jerome Danenberg, trading as "Berkeley Hills Pharmacy." In February 1976, the petition for viewers was amended to include Samuel J. and Anne K. Alioto, husband and wife, as owners of a right-of-way over the condemned land. Each of these parties claimed for damages to their distinct and separate interests in the condemned property.

In April 1978, prior to the end of proceedings before the board of viewers, the Department filed a written request for findings of fact and conclusions of law.*fn3 In that request the Department expressly acknowledged and designated the two tenants and the easement owners as being "additional condemnees."

[ 54 Pa. Commw. Page 481]

On September 29, 1978, the viewers filed their report, which in pertinent part declared that:

[T]he Viewers do now estimate and determine that the said N.H. Weidner, Inc., have (sic) sustained damages in the sum of SEVENTY-ONE THOUSAND FIVE HUNDRED and no/100ths -- ($71,500.00) DOLLARS. . . .

Distribution of the Award is as follows:

WEIDNER, INC. $42,000.00

JACK BERMAN, TRADING AS

VALET BOY CLEANERS $10,000.00

JEROME DANENBERG, TRAD-

ING AS BERKELEY HILLS

PHARMACY $7,500.00

SAMUEL J. ALIOTO and ANNE

K. ALIOTO, His Wife $12,000.00

TOTAL $71,500.00

On November 2, 1978, beyond the thirty-day appeal period set by law, the Department appealed to the lower court from the viewers' report.*fn4 The only condemnee named in the caption of the Department's appeal was the fee owner. More important, the Department's appeal described the "interest of the condemnee" only as "ownership in fee simple." The appeal did not, within its four corners, name the tenants and

[ 54 Pa. Commw. Page 482]

    easement owners, or even indicate the existence of their interests.

More than three months later, in February 1979, the tenants and the easement owners petitioned the lower court to enter final judgments as to the damages which the viewers had granted them. They asserted that the Department's appeal was not effective to appeal the awards for their interests, because neither they nor their interests had been designated in the Department's appeal. The lower court granted the petitions: it quashed the appeal as it related to those parties and entered final judgment.*fn5 The Department's appeal to this Court followed.

The term "condemnee" under the Eminent Domain Code "means the owner of a property interest taken, injured or destroyed, but does not include a mortgagee, judgment creditor or other lienholder."*fn6 Clearly, the two tenants and the easement owners in this case fall within that definition. They were "condemnees." Therefore, regarding the condemned real estate, the fee owner, the tenants and the owners of the easement were all "condemnees."

To perfect an appeal from a viewers' report, Section 516(a) of the Code requires that the appellant set forth in its appeal, inter alia, the name of the appellee, a brief description of the property involved and the condemnee's interest therein. Because in this case there were several condemnees, it became incumbent upon the Department to set forth in its appeal the interest of each one of them in the property involved. In short, the Department did not satisfy Section 516(a) by merely designating one of the condemnees, the owner of the fee simple. By not designating the interests of the two tenants and the owners of the easement,

[ 54 Pa. Commw. Page 483]

    the Department did not perfect an appeal as to those condemnees.

It is our conclusion that this case is governed by our decision in Exxon Corp. v. Department of Transportation, 10 Pa. Commonwealth Ct. 301, 312 A.2d 121 (1973). In the Exxon case the board of view had made an award to the fee owner and another award to a tenant, for the condemnation of a single tract of land. Each condemnee had been assigned a different docket number by the prothonotary. The condemnor's appeal from the viewers' report named only the fee owner as the condemnee; the only interest designated was "ownership in fee simple"; and the only docket number included was that of the fee owner.

In Exxon this Court held that the condemnor's appeal was ineffective under Section 516(a) of the Code to appeal the viewers' award to the tenant-condemnee, and should have been quashed. In so holding, we concluded that the condemnor's appeal violated the requirements of Section 516(a) by not naming the tenant as an appellee, not setting forth the tenant's interest and not referring to the tenant's docket number. Although in the case at bar there was no omission of a relevant docket number, the instant condemnor's appeal suffered from two serious violations of Section 516(a): the tenant and easement condemnees were not named and their interests were not set forth. The fact that Exxon involved three defects instead of two does not negate the applicability of that decision to the instant case. The principle of the Exxon case is that a condemnor's appeal from a viewers' report is subject to be quashed for substantive noncompliance with Section 516(a). The failure of the condemnor in this case, on appeal from the viewers' report, to include the names and interests of all the condemnees designated in that report was substantive noncompliance with Section 516(a) of the Code.

[ 54 Pa. Commw. Page 484]

Before this Court, the Department asserts that the board of viewers made but a single award, of $71,500.00, and that it was for the damages to the condemned property as a whole. From that assertion the Department further argues that its appeal to the lower court, naming the fee owner as condemnee, automatically included all the distributees of the "total damages." We reject that argument: because, we reject the premise upon which it is based.

Section 507(a) of the Code provides in pertinent part as follows:*fn7

[T]he award of the viewers or the verdict on appeal from the viewers shall first fix the total amount of damages for the property, and second, apportion the total amount of damages between or among the several claimants entitled thereto. (Emphasis added.)

The viewers in this case performed the duty imposed upon them by Section 507: they first fixed the total amount of damages for the condemned real estate as a whole; and then they apportioned that amount among the several claimants, as reflected in the schedule of distribution.

Although the viewers' report could have been drafted with greater technical accuracy, it is clear that it did what Section 511(7) of the Eminent Domain Code requires of a viewers' report where there are several interests in the condemned property:*fn8 the report stated the total amount of damages for the property itself and the distribution of those damages among the claimants.

The viewers' report did not make one award, but made several awards to the several claimants as apportioned from the total general damages of $71,500.00.

[ 54 Pa. Commw. Page 485]

Indeed, the $71,500.00 figure was not an award as such, because that amount was not granted to any particular claimant or interest. The $71,500.00 was the mathematical basis upon which apportioned awards were made to the various condemnees claiming for damages to their separate interests.

Conception of the individual distributees as having their own separate awards from the viewers finds direct support in Section 515 of the Code.*fn9 That Section, addressing an appeal by a "condemnee having less than the entire interest in the condemned property", speaks of "the award to him."

Furthermore, whether the instant condemnor perceived the viewers' report as making one award or as making several, that did not alter the express demand of Section 516(a) that an appeal from the report set forth the condemnee's interest. And, we construe that requirement to mean the interests of all condemnees involved, be they fee owner, tenant or easement holder.

In this case the initial petition for viewers and its amendment apprised the Department of all the interests here involved. Additionally, the Department itself expressly recognized the tenants and the co-owners of the easement as "additional condemnees" in its written request for findings of fact and conclusions of law, filed prior to the end of the viewers proceedings. The Department also should have recognized the clear mandate of Section 516(a) that those several interests be designated in its appeal from the viewers' report.

Notwithstanding its noncompliance with Section 516(a), the Department here urges that to leave standing the final judgments in favor of the other claimants will be unfair to the fee owner. The Department contends that if the fee owner is the sole claimant in the appeal proceedings before the lower court, the fee

[ 54 Pa. Commw. Page 486]

    owner will be exposed to not receiving "just compensation" for the damages to its fee interest. Specifically, the Department envisions the possibility of the trial court fixing total damages for the property at an amount lower than that set by the viewers. From that possibility the appellant asserts that the fee owner would be exposed to having the court-determined total damages consumed by the amounts now finalized in favor of the other claimants. We see no such specter.

Upon appeal to the lower court the matter will be heard de novo. The trial court will be required to follow the direction of Section 507 of the Code, as was the board of viewers. The trial court will, de novo, first fix the total amount of damages to the condemned property and then apportion that amount among the various interests. In so doing, the court will determine the share of the de novo total damages to which the fee owner is entitled. The interests of the other claimants will remain a factor in the de novo proceedings for purposes of ascertaining the apportioned share of the fee owner. That is the same position the fee owner would be in had the other claimants effectively been made actual parties to the de novo proceedings. Although the interests of the tenants and easement owners will be present in the proceedings before the trial court, it will be solely to permit apportionment of the fee owner's share, and not to determine the amount of compensation which these other interests will actually receive. That amount was set when final judgment was entered in their favor.

The above approach to the de novo proceedings finds support in the decision of our state Supreme Court in Philadelphia Redevelopment Authority Appeal, 435 Pa. 370, 257 A.2d 520 (1969). That case involved the claims of the fee owner and two easement holders, as to a single parcel of condemned realty. The condemnor settled with the easement holders prior to

[ 54 Pa. Commw. Page 487]

    the appointment of viewers; as a result they were not actual claimants before the viewers or the trial court in the de novo proceedings. The trial court determined the total damages to the condemned property and awarded that total amount to the fee owner because he was the only claimant before it. The Supreme Court remanded the case for apportionment.

In remanding, the Supreme Court in Philadelphia Redevelopment Authority Appeal held that even though the claims of the easement holders had been settled, their interests should have remained a factor in the de novo proceedings in order to apportion the total damages and to arrive at the fee owner's proper apportioned share of the total damages. Whether the claims of the other interests are fixed by private settlement or by final judgment, the effect on subsequent de novo proceedings should be the same.

In the case at bar, the fee owner and the other claimants each had an interest in the condemned property; and the injury to each of those interests constituted "damage". Garella v. Redevelopment Authority, 413 Pa. 181, 196 A.2d 344 (1964). For this Court to condone the derelictions that attended the Department's appeal from the viewers' report, would nullify the requirements set by the legislature in Section 516(a) of the Eminent Domain Code. The condemnor could ignore those provisions with impunity and thereby obtain a license to delay the payment of just compensation to the owners of property interests taken, injured or destroyed by governmental power.

Our scope of review of a lower court's decision in an eminent domain case is limited to a determination of whether the court committed an abuse of discretion or an error of law. Redevelopment Authority of Luzerne County v. Legosh, 39 Pa. Commonwealth Ct. 90, 394 A.2d 1089 (1978); Pidstawski v. South Whitehall Township, 33 Pa. Commonwealth Ct. 162, 380 A.2d

[ 54 Pa. Commw. Page 4881322]

(1977).*fn10 In this case we find neither infirmity; therefore, we affirm the order of the court below.

Order

And Now, the 7th day of November, 1980, the order of the Court of Common Pleas of Allegheny County at No. 1477 January Term, 1975, sur No. 3041 April Term, 1974, and entered on July 6, 1979, is affirmed.

Disposition

Affirmed.


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