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CONDEMNATION PERMANENT AND TEMPORARY RIGHTS--WAY AND EASEMENTS OVER (07/01/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 1, 1983.

IN RE: CONDEMNATION OF PERMANENT AND TEMPORARY RIGHTS-OF-WAY AND EASEMENTS OVER, ACROSS AND UNDER LANDS OF JERE E. PERRY AND MARY E. PERRY, HIS WIFE, IN GREENE TOWNSHIP, FRANKLIN COUNTY, PENNSYLVANIA. JERE E. PERRY AND MARY E. PERRY, HIS WIFE, APPELLANTS

Appeal from the Order of the Court of Common Pleas of Franklin County in the case of In Re: Condemnation of permanent and temporary rights-of-way and easements over, across and under lands of Jere E. Perry and Mary E. Perry, his wife, in Greene Township, Franklin County, Pennsylvania, No. A.D. 1981-111.

COUNSEL

Eileen F. Schoenfen, with her Thomas J. Finucane, Wingerd & Long, for appellants.

Rudolf M. Wertime, Wertime, Guyer & Gingrich, for appellee.

Judges Rogers, Blatt and Doyle, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 75 Pa. Commw. Page 344]

Jere E. and Mary E. Perry, husband and wife, (appellants) appeal an order of the Court Common Pleas of Franklin County which overruled their preliminary objections to a declaration of taking filed by the Guilford Water Authority (Authority) which sought to locate a sixteen-inch water line on the appellants' property.

The first argument raised by the appellants is that an eminent domain declaration of taking is not lawful where just compensation is not offered on or prior to the date of condemnation. The Authority, however, brings to our attention Article X, Section 4 of the Constitution of Pennsylvania which provides as follows:

Municipal and other corporations invested with the privilege of taking private property for public use shall make just compensation for property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements and compensation shall be paid or secured before the taking, injury or destruction. (Emphasis added.)

[ 75 Pa. Commw. Page 345]

Here, it is uncontested that the Authority filed, along with the declaration of taking, a bond*fn1 in the amount of $12,000*fn2 to secure the taking and to cover any damages as shall be determined by law payable to the appellants. Inasmuch as Article X, Section 4 requires only payment or security before the taking, and because this taking has been so secured, we believe that the appellants' argument must fail.

The appellants argue next that the notice (by certified mail) of the condemnation which they received was defective because the separate notice addressed to the husband was signed for and accepted only by his wife. In Avery v. Commonwealth, 2 Pa. Commonwealth Ct. 105, 109-110, 276 A.2d 843, 845 (1971) we stated that:

While condemnation proceedings affect the rights of individual citizens to use and enjoy their land, and must, therefore, be strictly construed, Lazarus v. Morris, 212 Pa. 128, 61 A. 815 (1905); Nichols on Eminent Domain, Vol. 1, ยง 3.213(1)(3) (3rd ed. 1950), the doctrine of strict construction has been used to guard against unauthorized use or extension of the power to condemn. We know of no constitutional or legal mandate which requires us to apply the standard of strict construction to non-prejudicial irregularities in the procedural aspects of condemnation. The court below has held that the Department substantially complied

[ 75 Pa. Commw. Page 346]

    with all notice and authorization procedures and that the appellants were not prejudiced by any irregularities. We agree. Appellants . . . were fully aware of the Department's intentions with respect to their properties. They were never misled as to the authority or finality of the steps being taken by the Department. This afterthought is mere makeweight. (Emphasis in original.)

For the same reasons in the instant matter, we find that the alleged notice irregularities were non-prejudicial to the appellants and will not serve as basis to upset the declaration of taking.

Finally, the appellants argue that the declaration of taking was invalid because the Authority's approved minutes of the meeting at which the condemnation was authorized refer to the adoption of an attached resolution which was allegedly not so attached. Again, we find this alleged irregularity, Avery, to be harmless error. It did not mislead or prejudice the appellants for it is clear that they had the minutes in the minutes book available to them for inspection, and they admit in their brief that the resolution was located a few pages later in the minutes book.

For the foregoing reasons we, therefore, will affirm the order of the court of common pleas.

Order

And, Now, this 1st day of July, 1983, the order of the Court of Common Pleas of Franklin County in the above-captioned matter is hereby affirmed.

Disposition

Affirmed.


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