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JOSEPH A. AND FRANCES T. DEMENO v. COMMONWEALTH PENNSYLVANIA (04/01/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 1, 1982.

JOSEPH A. AND FRANCES T. DEMENO, APPELLANTS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE

Appeal from the Order of the Court of Common Pleas of Montgomery County in case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, of Right of Way for Legislative Route 1046, Section 4R/W, a limited access highway, in Upper Providence Township; Property of Joseph A. DeMeno and Frances T. DeMeno, his wife, No. 71-13983.

COUNSEL

Joseph A. DeMeno, appellant, for himself.

Scott Olin, Assistant Counsel, with him, Sandra L. Guydon, Assistant Counsel, Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellee.

Judges Craig, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 65 Pa. Commw. Page 556]

In this eminent domain case, Joseph A. and Frances T. DeMeno appeal from an order of the Court of Common Pleas of Montgomery County holding that delay compensation for the taking of a portion of appellants' property be computed from the date of entry by the condemnor, the Pennsylvania Department of Transportation (PennDOT), rather than from the date of taking.

PennDOT condemned part of the DeMenos property on November 23, 1971, for the purpose of constructing a state road. Entry upon the land did not occur until January 5, 1976. From the date of condemnation until the date of entry, the DeMenos continued in the normal use of the condemned portion of their property.

The DeMenos, in their brief pro se, assert in general terms that they should receive delay compensation from the date of taking because it is their constitutional right as citizens of the United States of America to receive just compensation for property taken by any governmental agency.*fn1

[ 65 Pa. Commw. Page 557]

However, when PennDOT condemned the land in 1971, PennDOT became the owner of the property. Although the general rule is that rents accruing after a condemnor is entitled to possession belong to the condemnor, 6 Nichols on Eminent Domain ยง 24.5 (rev. 3d ed. 1973), our statute provides that, if the former owner is allowed to remain on the property, he does so free of rent obligation.*fn2 Therefore, in Govatos v. Redevelopment Authority of County of Montgomery, 11 Pa. Commonwealth Ct. 529, 314 A.2d 536 (1974), we concluded that the owners of the property are not deemed to have been injured until the date of entry as long as the owners have full use of the property, and we expressly upheld the constitutionality of Section 611 of the Eminent Domain Code (Code),*fn3 which provides that:

The condemnee shall not be entitled to compensation for delay in payment during the periods he remains in possession after the condemnation. . . .*fn4

The DeMenos have also argued alternatively that, if delay damages are awarded only from the 1976 date

[ 65 Pa. Commw. Page 558]

    of entry, the market value of the property should be calculated at the 1976 level rather than at the lower level prevailing at the time of taking in 1971.

However, having viewed the transaction as involving a lessor-lessee relationship in the 1971-76 period, the law is consistent and realistic in regarding 1971 as the compulsory sale date. Moreover, the market value change between taking and entry could, in other times, be a falling trend rather than a rising one.

Accordingly, we reject the DeMenos' constitutional challenge and affirm the decision of the common pleas court.

Order

Now, April 1, 1982, the order of the Court of Common Pleas of Montgomery County, dated March 21, 1980, No. 71-139803, is affirmed.

Disposition

Affirmed.


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