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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA (12/12/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 12, 1983.

IN RE: CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA, ACTING BY AND THROUGH THE DEPARTMENT OF GENERAL SERVICES ETC. PAUL MOYER, JR. AND ESTHER S. MOYER, HIS WIFE, APPELLANTS

Appeal from the Order of the Court of Common Pleas of Lebanon County in case of In Re: Condemnation by the Commonwealth of Pennsylvania, Acting by and through the Department of General Services, of the property of Paul Moyer, Jr. and Esther S. Moyer, his wife, and any other persons and interests herein, situate in Union Township, Lebanon County, No. 762, Year 1977.

COUNSEL

David Kreider, with him David J. Brightbill, Siegrist, Koller, Brightbill & Long, for appellants.

H. Warren Ragot, Assistant Counsel, with him Anthony P. Krzywicki, Chief Counsel, for appellees.

Judges Williams, Jr., Doyle and Barbieri, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 79 Pa. Commw. Page 57]

This is an appeal by Paul and Esther Moyer (Condemnees) from an order of the Lebanon County Court of Common Pleas which issued a Writ of Possession against their property.

On March 24, 1977 the Department of General Services*fn1 (Department) filed a Declaration of Taking which severed 32 1/2 acres of farmland from Condemnees' property to form part of the proposed Swatara Gap State Park. Condemnees' preliminary objections to the taking were dismissed by the Court of Common Pleas, whose decision was upheld on appeal.*fn2 In the interim, funding for the project had been depleted, and no further action could be taken until December 18, 1980, when the legislature approved additional funding.*fn3 After the Department secured appointment of a Board of View in August of 1981, Condemnees filed a petition which sought to have the condemnation declared abandoned and the title to the subject property returned to them. On August 4, 1982, Lebanon County

[ 79 Pa. Commw. Page 58]

Court denied Condemnees' petition and issued a Writ of Possession against their property. Condemnees appeal from this order.

Initially before this Court is the Department's motion to dismiss the appeal. This motion raises issues identical to those raised in the Department's earlier Motion to Quash, which was denied by Senior Judge Paul S. Lehman of this Court on October 18, 1982.*fn4 We concur with Judge Lehman's decision in this matter, and on this basis we shall deny the present Motion to Dismiss, thus reaching the merits of the appeal.

The main issue raised on appeal is whether the delay between filing of the declaration of taking and the tender of just compensation constitutes a de facto abandonment of the condemnation by the Department. Condemnees concede that the Eminent Domain Code*fn5 (Code) makes no provision for an abandonment of a condemnation on the basis of delay.*fn6 However, they urge the Court that the finding of a de facto abandonment on the basis of the Department's 23 month delay is necessary to protect the rights of condemnees and to insure fairness in the proceedings. We do not agree.

[ 79 Pa. Commw. Page 59]

A condemnee's rights against undue delay by a condemnor are well protected by Section 407 of the Code, which permits a condemnee to compel payment of estimated just compensation within sixty days of the filing of the declaration of taking.*fn7

The 23 month delay in this case was not unavoidable, but rather resulted from condemnees' own decision to forgo their remedy, and instead remain in possession of the property. For three years after the Supreme Court denied allocatur on September 17, 1979, the Condemnees farmed the land taken. Condemnees' rights were thus fully protected throughout the delay and no unfairness has resulted.

A finding of abandonment on the basis of delay is neither warranted under the Code nor required to insure fairness in the proceedings. Accordingly, we reject the condemnees' claim and affirm the order of the Lebanon County Court of Common Pleas.*fn8

[ 79 Pa. Commw. Page 60]

Order

Now, December 12, 1983, the order of the Lebanon County Court of Common Pleas in the above referenced matter, dated August 4, 1982, is hereby affirmed.

Disposition

Affirmed.


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