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APPOINTMENT VIEWERS TO ASSESS DAMAGES ACQUIRING AN EASEMENT FOR INTERCEPTOR SEWER LINE ETC. LACKAWANNA RIVER BASIN SEWER AUTHORITY (05/11/84)

decided: May 11, 1984.

APPOINTMENT OF VIEWERS TO ASSESS DAMAGES IN ACQUIRING AN EASEMENT FOR INTERCEPTOR SEWER LINE ETC. LACKAWANNA RIVER BASIN SEWER AUTHORITY, APPELLANT


Appeal from the Order of the Court of Common Pleas of Lackawanna County in the case of In Re: Appointment of Viewers to assess damages in acquiring an easement for interceptor sewer line, property of O.S.C. Company by the Lackawanna River Basin Sewer Authority, No. 1001 November Term, 1974.

COUNSEL

Ralph P Carey, Ralph P. Carey & Associates, for appellant.

David J. Rinaldi, with him, William P. Farrell, Rinaldi & Rinaldi, for appellee.

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

Author: Blatt

[ 82 Pa. Commw. Page 370]

The Lackawanna River Basin Sewer Authority (Authority) appeals here from an order of the Court of Common Pleas of Lackawanna County holding that the Authority is not entitled to a set-off pursuant to Section 4 of the Act of July 1, 1937 (Act)*fn1 against condemnation damages awarded to O.S.C. Company (OSC).

In 1974, the Authority filed a declaration of taking for the purposes of constructing an interceptor sewer line over property owned by OSC. Following a contested hearing before the duly appointed Board of Viewers, a report was issued awarding OSC $12,000.00 for condemnation damages and $500.00 for attorney and appraisal fees. Judgment was entered on September 30, 1982 in favor of OSC and against the Authority in the amount of $18,489.85.*fn2

The Authority then filed a petition for set-off against the award pursuant to Section 4 of the Act, 53 P.S. ยง 7234,*fn3 and a petition to correct the amount of

[ 82 Pa. Commw. Page 371]

    the judgment.*fn4 In its petition, the Authority sought to set-off sewer construction liens attached to OSC properties not involved in the present condemnation proceeding. On October 19, 1982, the Court of Common Pleas of Lackawanna County entered a rule to show cause why the set-off should not be granted and why the judgment should not be corrected as requested. Following argument, that court filed an order and opinion in January 1983 dismissing the earlier granted rule as to the set-off claim and making it absolute as to the requested judgment correction. The Authority then filed exceptions to the dismissal of its set-off claim, and they were dismissed in a memorandum opinion and order by the court on May 10, 1983. The present appeal ensued.

Our scope of review of this decision of a court of common pleas in an eminent domain case is limited to determining whether or not the court committed an abuse of discretion or an error of law. In re Condemnation by Com., Dept. of Transp., of Right-of-Way for Legislative Route 02302, 54 Pa. Commonwealth Ct. 478, 422 A.2d 711 (1980).

In dismissing the Authority's petition for set-off, the court of common pleas stated in its January 1983 opinion that, "by virtue of 53 P.S.A. 7274,*fn5 [sic] and since these municipal improvement claims are ...


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