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CONDEMNATION BY CITY PHILADELPHIA LEASEHOLD AIRPORTELS (04/30/81)

decided: April 30, 1981.

IN RE: CONDEMNATION BY THE CITY OF PHILADELPHIA OF THE LEASEHOLD INTEREST OF AIRPORTELS, INC. AIRPORTELS, INC., APPELLANT


Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of In Re: Condemnation by the City of Philadelphia of the leasehold interest of Airportels, Inc., in all those six acres, more or less, with improvements thereon erected, situate in the Fortieth Ward of the City of Philadelphia, fronting on Essington Avenue and located on the Philadelphia International Airport, No. 3516 May Term, 1973.

COUNSEL

John R. Padova, with him Richard D. Solo, Solo, Padova & Lisi, for appellant.

T. Michael Mather, Chairman, Litigation Department, with him Alan J. Davis, City Solicitor, and Judith N. Dean, Deputy City Solicitor, for appellee.

Judges Mencer, Rogers and Palladino, sitting as a panel of three. Opinion by Judge Mencer. Judge Wilkinson, Jr. did not participate in the decision in this case. Judge Williams, Jr. did not participate in the decision in this case.

Author: Mencer

[ 59 Pa. Commw. Page 87]

In City of Philadelphia Appeal, 40 Pa. Commonwealth Ct. 409, 398 A.2d 224 (1979), we affirmed a judgment for estimated just compensation of $4,400,000, entered under Section 407(b) of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-407(b), against the City of Philadelphia and in favor of Airportels, Inc. (Airportels). This judgment followed the de facto taking, by the City of Philadelphia, of the leasehold interest of Airportels in a motel at the Philadelphia International Airport.

Thereafter, Airportels filed a petition for counsel fees, appraisal fees, and costs under Section 609 of the Code, added by Section 7 of the Act of December 29, 1971, P.L. 639, 26 P.S. § 1-609, which reads as follows: "Where proceedings are instituted by a condemnee under section 502(e) [26 P.S. § 1-502(e)], a judgment awarding compensation to the condemnee for the taking of property shall include reimbursement of reasonable appraisal, attorney and engineering fees and other costs and expenses actually incurred."

After hearings held on October 9, 10, and 16, 1979, the Court of Common Pleas of Philadelphia County rendered an award to Airportels in the sum of $25,000. Airportels filed an appeal to this Court from that award and we reverse.

One of the questions raised here by Airportels is whether an award under Section 609 of the Code is timely when made following a judgment for estimated just compensation under Section 407(b) of the Code.

[ 59 Pa. Commw. Page 88]

We conclude that it is not and that Airportels' petition for counsel fees, appraisal fees, and costs was premature and should have been dismissed without prejudice.

Since Airportels, as a condemnee, instituted proceedings for a de facto taking of its leasehold interest in a motel under Section 502(e), it would be entitled to have any judgment awarding compensation to it for the taking of its property include reimbursement of reasonable appraisal, attorney, and engineering fees and other costs and expenses actually incurred by virtue of the provision of Section 609 of the Code.

The compensation for the taking of property referred to in Section 609 is the just compensation to which the condemnee is entitled for the taking of his property by virtue of Section 601, 26 P.S. § 1-601, ...


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