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COMMONWEALTH PENNSYLVANIA v. HENRY J. BEAMER AND ELIZABETH S. BEAMER (05/24/85)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 24, 1985.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT
v.
HENRY J. BEAMER AND ELIZABETH S. BEAMER, HIS WIFE, APPELLEES

Appeals from the Order of the Court of Common Pleas of Somerset County in case of Henry J. Beamer v. Commonwealth of Pennsylvania, Department of Transportation, No. 261 Civil 1983, and in case of Henry J. Beamer and Elizabeth S. Beamer, his wife, v. Commonwealth of Pennsylvania, Department of Transportation, No. 262 Civil, 1983.

COUNSEL

Marilyn K. Josephs, Assistant Counsel, with her, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.

Samuel D. Clapper, with him, Matthew G. Melvin, and Nathaniel A. Barbera, Barbera and Barbera, for appellees.

Judges MacPhail, Barry and Colins, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 89 Pa. Commw. Page 492]

The Pennsylvania Department of Transportation (DOT) appeals here from a decision of the Court of Common Pleas of Somerset County which ordered that two contiguous parcels of land condemned in part by DOT must be treated as one parcel for the purpose of assessing damages.*fn1 Although we are not in agreement with all of that Court's rationale, for the reasons set forth below we will affirm.*fn2

[ 89 Pa. Commw. Page 493]

The Beamers were married in 1950.*fn3 In 1956, Henry J. Beamer purchased a tract of land approximately one acre in area. In 1970, the Beamers as tenants by the entireties purchased a contiguous tract of land containing approximately 5.48 acres. Both tracts were undeveloped and they remained vacant and undeveloped until July 16, 1979, when DOT filed a declaration of taking condemning a portion of each lot. The Beamers petitioned for the appointment of viewers for each parcel of land. At the hearing held by the viewers, the Beamers argued that the two parcels should be assessed as one to determine the amount of damages.*fn4 The Beamers predicated their argument upon Section 605 of the Eminent Domain Code (Code), Act of June 22, 1964, Sp. Sess., P.L. 84, as amended, 26 P.S. § 1-605, which states "[w]here all or a part of several contiguous tracts owned by one owner is condemned or a part of several non-contiguous tracts owned by one owner which are used together for a unified purpose is condemned, damages shall be assessed as if such tracts were one parcel." (Emphasis added.)

The parties submitted the issue of construction of Section 605 of the Code to the trial court. That Court,

[ 89 Pa. Commw. Page 494]

    in its opinion, analyzed the theory of unity of use in determining that the two tracts should be assessed as one. We are constrained to disagree with this analysis inasmuch as our Supreme Court has said that "the 'unity of use' doctrine should be limited to situations involving non-contiguous land and not extend to contiguous tracts." Elgart v. Philadelphia, 395 Pa. 343, 346, 149 A.2d 641, 643 (1959).*fn5 This Court has followed Elgart. See Moore v. Montgomery County, 22 Pa. Commonwealth Ct. 262, 348 A.2d 762 (1975).*fn6

The Code was enacted as a codification of the laws concerning eminent domain. As such, its purpose is to ensure just compensation to those persons whose land is condemned by eminent domain. Our research has disclosed no Pennsylvania cases which construe the phrase "owned by one owner." As counsel for the Beamers states, that phrase is not without ambiguity. Had the legislature intended to say "owned by one owner of record" or "titled in the same party," it could have done so. Lacking such precision, we must

[ 89 Pa. Commw. Page 495]

    refer to the rules of statutory construction found in the Statutory Construction Act of 1972, 1 Pa. C.S. §§ 1501-1991 (Act).

Because we find that the words of Section 605 of the Code are not explicit we may consider, among other things, the object to be attained by the statute:*fn7 that condemnees receive just compensation. We also must consider that although provisions conferring the power of eminent domain and provisions exempting property from the power of eminent domain must be strictly construed, Section 1928(b)(4) and (6) of the Act, 1 Pa. C.S. § 1928(b)(4) and (6), the provision in question is to be liberally construed to effect its object and provide a just result. Section 1928(c) of the Act, 1 Pa. C.S. § 1928(c).

As was noted by Elgart, when two contiguous tracts of land are acquired by a single owner, the combined parcel may be worth more than the total value of each tract considered separately. We believe that Section 605 of the Code recognizes that there may be an advantage to the landowner in assessing two or more contiguous tracts as a single parcel,*fn8 and that just compensation requires such assessment.

We hold that where a husband and wife seek an assessment of damages pursuant to Section 605 of the Code, and the contiguous properties were purchased by one or both of the spouses during the marriage and can best be used as a single parcel, such properties shall be deemed "owned by one owner" although one parcel is titled in the name of both spouses and the other is titled in the name of one spouse.

[ 89 Pa. Commw. Page 496]

Order affirmed. We will remand this matter to the court of common pleas for trial or such further proceedings as are necessary.

Order

The order of the Court of Common Pleas of Somerset County dated March 22, 1984, Nos. 261 and 262 Civil 1983, is hereby affirmed. The matter is remanded to that Court for further proceedings as necessary.

Jurisdiction relinquished.

Amended Order

Now, May 30, 1985, the Order of this Court entered May 24, 1985, is hereby amended to read as follows:

The order of the Court of Common Pleas of Somerset County dated March 22, 1984, No. 261 Civil 1983 and No. 262 Civil 1983 is hereby affirmed. The matter is remanded to that Court for further proceedings as necessary.

Jurisdiction relinquished.

Disposition

Affirmed. Case remanded.


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