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COMMONWEALTH PENNSYLVANIA v. IVAN W. AND KATHRYN M. HESS (11/25/80)

decided: November 25, 1980.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT
v.
IVAN W. AND KATHRYN M. HESS, APPELLEES



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Ivan W. and Kathryn M. Hess v. Commonwealth of Pennsylvania, Department of Transportation, No. 77-16481.

COUNSEL

Sandra L. Guydon, with her Martin Burman, Scott M. Olin, Special Assistant Attorney General, Ward Williams, Chief Counsel, and Edward G. Biester, Attorney General, for appellant.

Arthur L. Jenkins, Jr., with him H. Ober Hess, for appellee.

Judges Mencer, Rogers and Palladino, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 55 Pa. Commw. Page 28]

The Commonwealth, by the Department of Transportation, condemned about 16 acres of the 200 acre farm of Ivan W. and Kathryn M. Hess located in Limerick Township, Montgomery County by Declaration of Taking filed November 23, 1971. A jury of

[ 55 Pa. Commw. Page 29]

    view awarded the condemnees $110,000 in damages and fixed November 23, 1971 as the date for the beginning of the period to be used in computing compensation for delay in payment of compensation pursuant to Section 611 of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-611, which provides:

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 occupancy of the condemned property by the condemnee. Compensation for delay in payment shall, however, be paid at the rate of six per cent per annum from the date of relinquishment of possession of the condemned property by the condemnee, or if the condemnation is such that possession is not required to effectuate it, then delay compensation shall be paid from the date of condemnation: Provided, however, That no compensation for delay shall be payable with respect to funds paid on account or by deposit in court, after the date of such payment or deposit. Compensation for delay shall not be included by the viewers or the court or jury on appeal as part of the award or verdict, but shall at the time of payment of the award or judgment be calculated as above and added thereto. There shall be no further or additional payment of interest on the award or verdict.

The Department of Transportation appealed the jury of view award, asking for a jury trial.

On July 23, 1979, a pretrial settlement conference was conducted by a judge, in the course of which the parties agreed in writing to a verdict in favor of the

[ 55 Pa. Commw. Page 30]

    condemnees in the amount of $100,000 for damages for the take, "plus interest" (and $500 attorneys fees). The parties were unable to agree as to the date on which the period for the payment of compensation for delay (which they call interest) should commence. The fact upon which that decision would rest -- when the Commonwealth got possession of the condemned parcel or conversely when the condemnee relinquished or no longer remained in possession -- seems to have been left with the conference judge for decision. No record was made of the pretrial settlement conference other than the written verdict. By order dated the day of the conference, July 23, 1979, the conference judge, for the ...


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