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.
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.
[ 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 ...