Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

APPEAL VICTORY GLASS (08/10/81)

COMMONWEALTH COURT OF PENNSYLVANIA


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 renders the declaration of relinquishment invalid, under Section 408 of the Code.

Section 408 of the Code provides in relevant part as follows:

The condemnor, by filing a declaration of relinquishment in court within one year from the filing of the declaration of taking, and before having made the payment provided for in Section 407(a) or (b), or as to which the condemnee has not tendered possession of the condemned property as provided in Section 407, may relinquish all or any part of the property condemned that it has not taken actual possession of for use in the improvement, whereupon title shall revest in the condemnee as of the date of the filing of the declaration of taking. . . .

The language of Section 408 of the Code, which controls the disposition of Condemnor's attempted declaration of relinquishment, recently was construed by this Court. In Brooks v. North Huntingdon Township Municipal Authority, 44 Pa. Commonwealth Ct. 29, 404 A.2d 430 (1979), the municipal authority condemned certain rights-of-way and easements by a declaration of taking for the construction of a sanitary

[ 61 Pa. Commw. Page 75]

    sewer system. It was discovered after the completion of construction that some of the facilities were not placed as indicated on the original right-of-way maps. The condemnor authority sought to correct the discrepancies by filing, more than one year after the declaration of taking was filed: 1) a declaration of relinquishment, seeking to revest in the condemnee the unoccupied rights-of-way taken, and 2) an "Amended Declaration of Taking," in order to condemn the rights-of-way necessary for the already completed construction.

In Brooks the Court considered the validity of the declaration of relinquishment and the amended declaration of taking as separate issues. The fact that the condemnor in Brooks filed an "Amended Declaration of Taking" (held impermissible) did not have a bearing on the validity of the declaration of relinquishment, under Section 408 of the Code; thus that additional fact in Brooks does not change the application of Section 408 to the case before us. Both in Brooks and in the case at bar, the condemnor municipal authority had not yet taken possession of the condemned property which was the subject of the declaration of relinquishment, but had failed to file the declaration of relinquishment within one year of the filing of the declaration of taking.

This Court held in Brooks that the lower court's dismissal of the condemnees' preliminary objections to the declaration of relinquishment was erroneous, i.e., that the declaration of relinquishment was invalid, because

Section 408 of the Code, 26 P.S. ยง 1-408 unambiguously provides that '[t]he condemnor, by filing a declaration of relinquishment in court within one year from the filing of the declaration of taking. . . may relinquish all or any part of the property condemned that it has not

[ 61 Pa. Commw. Page 76]

    taken actual possession of for use in the improvement. . . .' (Emphasis in original.)

Id. at 32, 404 A.2d at 431.

As in Brooks, the Condemnor here failed to meet the first of the two requirements under Section 408 of the Code, which must be met concurrently before a declaration of relinquishment can be held valid.*fn2 The Condemnor's simple failure to comply with the threshold filing deadline of Section 408 of the Code compels us to hold its declaration of relinquishment invalid, and thus its declaration of taking is still in effect.*fn3 Therefore, we reverse the lower court and sustain the first of Condemnee's preliminary objections.

Order

And Now, this 10th day of August, 1981, the order of the Court of Common Pleas of Westmoreland County, dated June 4, 1980, is hereby reversed, and the case is remanded to the trial court to order that the declaration of relinquishment filed by Hempfield Township Municipal Authority be stricken.

Disposition

Reversed and remanded.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.