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APPEAL VICTORY GLASS (08/10/81)

decided: August 10, 1981.

APPEAL OF VICTORY GLASS, INC., A PENNSYLVANIA CORPORATION, FROM THE JUST COMPENSATION DUE PETITIONER ARISING FROM THE DE FACTO CONDEMNATION OF ITS PROPERTIES SITUATE IN THE TOWNSHIP OF HEMPFIELD, COUNTY OF WESTMORELAND AND COMMONWEALTH OF PENNSYLVANIA. VICTORY GLASS, INC., APPELLANT


Appeal from the Order of the Court of Common Pleas of Westmoreland County in the case of In the Matter of Condemnation of Rights-of-Way and Easements situate in the Township of Hempfield, Borough of Youngwood and Borough of New Stanton, County of Westmoreland, Commonwealth of Pennsylvania, by Hempfield Township Municipal Authority for Sewer Purposes, No. 3714 of 1976.

COUNSEL

Leonard M. Mendelson, Hollinshead and Mendelson, for appellant.

H. Nevin Wollam, for appellee.

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

Author: Macphail

[ 61 Pa. Commw. Page 73]

This is an appeal by Victory Glass, Inc. (Condemnee) from an order of the Court of Common Pleas of Westmoreland County dismissing its preliminary objections to the declaration of relinquishment filed by the Hempfield Township Municipal Authority (Condemnor).

On November 10, 1976, the Condemnor filed a declaration of taking in the Court of Common Pleas of Westmoreland County whereby it condemned a right-of-way or easement in, under, and across the property of condemnee for the installation of sewer lines, manholes and other facilities. On March 7, 1978, the Condemnor filed a declaration of relinquishment with the court below purporting to revest absolute title in the Condemnee to the right-of-way or easement condemned in its original declaration of taking filed November 10, 1976.

On April 6, 1978, the Condemnee filed preliminary objections to the Condemnor's declaration of relinquishment, asserting therein that the declaration of relinquishment was "invalid, contrary to law, and of no force and effect" for two reasons: 1) the declaration of relinquishment was filed more than one year from the filing of the declaration of taking, contrary to Section 408 of the Eminent Domain Code (Code),*fn1 and 2) the declaration of relinquishment was filed after the Condemnor had taken actual possession of the condemned property, also contrary to Section 408 of the Code.

On June 4, 1980, after a hearing the lower court dismissed both preliminary objections. The lower court reasoned that even though the declaration of relinquishment

[ 61 Pa. Commw. Page 74]

    in fact was filed more than one year after the declaration of taking was filed, since the Condemnor had not yet "taken possession of, occupied, entered upon or used" the property of the Condemnee, the declaration of relinquishment was valid and the preliminary objections were without merit.

On appeal, Condemnee does not contest the lower court's finding that Condemnor had not yet "taken possession of, occupied, entered upon, or used" Condemnee's property. Condemnee's argument is confined to the single issue of whether or not the tardy filing of the declaration of relinquishment in and of itself ...


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