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COMMONWEALTH PENNSYLVANIA v. DIXON TICONDEROGA COMPANY (11/15/85)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 15, 1985.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT
v.
DIXON TICONDEROGA COMPANY, APPELLEE

Appeal from the Orders of the Court of Common Pleas of Delaware County in case of Dixon Ticonderoga Company v. Commonwealth of Pennsylvania, Department of Transportation, No. 12626 of 1968.

COUNSEL

Martin Burman, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.

Andrew J. Forbes, Cramp, D'Iorio, McConchie & Forbes, P.C., for appellee.

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

Author: Blatt

[ 93 Pa. Commw. Page 54]

The Commonwealth of Pennsylvania, Department of Transportation (Department) appeals two orders of the Court of Common Pleas of Delaware County, dated June 21, 1984. The first molded a $500,000 jury verdict rendered on March 9, 1984 in eminent domain by adding delay damages bringing the total verdict to $865,596 and directed entry of the verdict in favor of the Dixon Ticonderoga Company (Dixon) and against the Department. The second order assessed attorney's fees against the Department in the amount of $1,000 and further ordered the Department to pay to Dixon's counsel an additional $1,000 per day from June 21, 1984 until the verdict rendered on March 9, 1984 has been paid.

This case arises from a condemnation by the Department's predecessor, the Pennsylvania Department of Highways, commenced in 1968. Following a

[ 93 Pa. Commw. Page 55]

    remand from this Court,*fn1 a second jury trial was held in March 1984, resulting in the above-noted verdict in favor of Dixon. When, by June 20, 1984, the Department had not satisfied the verdict,*fn2 Dixon filed a petition to establish October 2, 1968, the date of the condemnation, as the date from which interest (delay compensation) would be calculated and to award additional attorney's fees and penalties. After hearing argument from the parties on June 21, 1984, but without taking evidence, the trial court entered the orders at issue here.*fn3

[ 93 Pa. Commw. Page 56]

On appeal, the Department raises three major questions for our determination: 1) whether or not delay compensation accrues, per se, from the date of the condemnation under Section 611 of the Eminent Domain Code (Code);*fn4 2) whether or not a court may award interest on delay compensation and 3) whether or not attorney's fees under Section 610 of the Code*fn5 may exceed $500. We will address these issues in the order presented consistent with our scope of review in eminent domain cases.*fn6

[ 93 Pa. Commw. Page 57]

Section 611 of the Code pertinently provides:

The condemnee shall not be entitled to compensation for delay in payment during the period he remains in possession after the condemnation . . . Compensation for delay in payment shall, however, be paid at the rate of six per cent per annum from the date of relinquishment of possession of the condemned property by the condemnee, or if the condemnation is such that possession is not required to effectuate it, then delay compensation shall be paid from the date of condemnation. . .

In challenging the trial court's establishment of the date of the condemnation, October 2, 1968, as the date from which delay compensation should accrue, the Department alleges that it did not obtain possession of the land in question until some time in May 1969. Arguing that it was erroneously denied an evidentiary hearing to consider the issue of the date of possession before the establishment of the date from which delay compensation would be calculated, the Department relies on the statement of Judge Rogers, writing for this Court in Department of Transportation v. Hess, 55 Pa. Commonwealth Ct. 27, 33, 423 A.2d 434, 437 (1980) (citing Govato v. Redevelopment Authority of Montgomery County, 11 Pa. Commonwealth Ct. 529, 314 A.2d 536 (1974)), "that the mere filing of a declaration does not effect a condemnation for Section 611 purposes."

Taking the position that possession was not required here to effectuate the condemnation, Dixon advances several arguments.

The first such argument is that, under the trial court's holding that the taking was proven to that court and the jury, our decisions in Township of Ridley v. Forde, 73 Pa. Commonwealth Ct. 611, 459

[ 93 Pa. Commw. Page 58]

A.2d 449 (1983); Benkovitz Appeal, 70 Pa. Commonwealth Ct. 230, 452 A.2d 1113 (1982) and McCracken v. City of Philadelphia, 69 Pa. Commonwealth Ct. 492, 451 A.2d 1046 (1982) hold that a condemnee is entitled to just compensation for the loss of his property including interest, fees and costs which follow such a verdict. Without disagreeing with that general principle, however, we do not read those cases as supporting Dixon's position in the instant matter.

In examining the relationship of those cases to this appeal, we must bear in mind that there is no disagreement between the parties here that Dixon is entitled to some delay compensation. The issue here is how much. And, of course, the resolution of that question depends upon the date from which such compensation is calculated, the date of the condemnation as Dixon contends or some later date in May 1969, as the Department argues.

We explicitly held in Township of Ridley that the township, the condemnor, had to pay delay compensation from the date it took possession, not, as it had contended, from the date it acquired title in fee simple. Also in Benkovitz, the question of when delay compensation began to accrue turned on possession. Finally, McCracken concerned a de facto taking, and is consequently inapposite here.

[ 93 Pa. Commw. Page 59]

Next, Dixon argues that, because the Department never requested a hearing after the March 9, 1984 jury verdict to allow it to attempt to prove that possession did not occur on the date of the condemnation in order to defeat the presumption that a condemnee is entitled to delay compensation from the date of the condemnation,*fn7 allowance of such a hearing at this point in the proceedings would violate the rule of Dilliplaine v. Page 59} Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974) (failure to make a timely specific objection at trial will result in allegation of error on that point not being considered on appeal). Again, we must disagree. Dilliplaine, being an action for injuries allegedly arising out of an automobile collision and, therefore, within the purview of the Pennsylvania Rules of Civil Procedure, is inapposite to this eminent domain proceeding. Hess. Having no evidentiary record of the post-trial proceedings, we believe that Hess is controlling here and that a remand is required to establish a factual record from which the appropriate date to begin the calculation of delay compensation may be determined.

Alternatively, Dixon argues that no remand is required here because this case comes under the exception in ยง 611 which establishes the date of the condemnation as the date from which delay compensation accrues where possession is not necessary to effectuate the condemnation. Asserting that some of the interests condemned in this matter are easements, Dixon offers for our consideration the following:

One can think however of consequential damage cases arising under Section 612 such as damages resulting from a change of grade of a road or highway or permanent interference with access to a road or highway or injury to surface support, where no property is taken. Changes made within the legal right-of-way line of a highway would not require any possession from the property of the owner lying outside of the legal right-of-way line.

Dempsey, Eminent Domain Development Revisited, 46 Pa. BAR ASS'N Q. 176 (1975) (quoted with approval in dicta by Judge (later Justice) Wilkinson in County of Bucks v. .800 Acres of Land, 32 Pa. Commonwealth Ct. 448, 452-3,

[ 93 Pa. Commw. Page 60379]

A.2d 903, 905 (1977)). While we find the foregoing to be persuasive, we do not believe that it supports Dixon's position. To the contrary, we believe that, in applying that reasoning to the matter sub judice, a remand would be required here even if Hess did not require that result. Our decision in Re: Condemnation for L.R. 23047 established that Dixon possessed a combination of interests in the condemned land, owning 4.336 acres in fee simple with the remainder, 3.193 acres, held by easements. As we have noted, delay compensation accrues from the date of possession only with respect to property held in fee simple, whereas under the rationale of County of Bucks, it accrues from the date on which the declaration of taking was filed with respect to the easements.

We must, therefore, reluctantly conclude that another remand is necessary in this already overlong litigation, so that there may be an evidentiary hearing to establish the respective dates from which delay compensation should be calculated. After such hearing the trial court will be able to calculate the delay compensation from the date of the taking with respect to the portions of the award attributable to the condemnation of Dixon's fee simple property and, likewise, to calculate the delay compensation for the portions consisting of the easements.

As to the second major question raised by the Department here, which is whether or not the trial court erred in awarding interest on a portion of the delay compensation, we note that the Department protests specifically the trial court's inclusion of $15,240 interest on the delay compensation in the molded verdict. To support this assignation of error, the Department relies on the following from the comment to Section 611 in the Joint State Government Commission's 1964

[ 93 Pa. Commw. Page 61]

Report. "The condemnee is only entitled to the one 6% on his award. He would not be entitled to the 6% and then 6% interest on that 6%. In other words, it is not intended by this section to have interest being paid on delay compensation." We are persuaded by this comment that it was, indeed, error for the trial court to assess interest on the delay compensation.*fn8 Cf. Powell v. Retirement Board of Allegheny County, 431 Pa. 396, 246 A.2d 110 (1968) (error to allow compound interest on a debt unless parties have expressly provided for it by agreement or a statute expressly authorizes it). Accordingly, we will reverse that part of the trial court's order.

The remaining question concerns the amount of attorney's fees allowed by the trial court in its orders of June 21, 1984. In molding the jury verdict, the trial court included $500 for attorney's fees. See note 3. Section 610 of the Code,*fn9 provides:

The owner of any right, title, or interest in real property acquired or injured by an acquiring agency, who is not eligible for reimbursement of such fees under sections 406(e) [where preliminary objections to the declaration of taking are sustained, condemnee shall be entitled to damages as if the condemnation had been revoked], 408 [where condemned property is relinquished, condemnee shall be reimbursed by condemnor for reasonable appraisal, attorney and engineering fees and other costs and expenses actually incurred because of condemnation proceedings] or 609 of this act, shall be reimbursed

[ 93 Pa. Commw. Page 62]

    in an amount not to exceed five hundred dollars ($500) as a payment toward reasonable expenses actually incurred for appraisal, attorney and engineering fees. (Footnote omitted.)

Section 609 of the Code*fn10 provides that "[w]here proceedings are instituted by a condemnee under section 502(e) [allowing condemnee to file petition for appointment of viewers where no declaration of taking has been filed], a judgment awarding compensation to the condemnee for the taking of property shall include reimbursement of reasonable appraisal, attorney and engineering fees and other costs and expenses actually incurred." (Footnote omitted.)

Under these provisions, it is apparent that where, as here, a declaration of taking was filed, the maximum attorney's fees which can be awarded is $500. Hence, we must reverse the trial court's order assessing attorney's fees of $1,000 with an additional $1,000 per day from the date of such order until the March 9, 1984 jury verdict is paid.

For the reasons set forth herein, therefore, we will reverse the order of the trial court awarding excessive attorney's fees, will vacate the order molding the jury verdict and will remand for an evidentiary hearing as to the date or dates from which proper delay compensation may be calculated.

Order

And Now, this 15th day of November, 1985, the order of the Court of Common Pleas of Delaware County, dated June 21, 1984, molding the jury verdict is vacated and the matter is remanded to that Court for further proceedings consistent with this Opinion.

[ 93 Pa. Commw. Page 63]

The order of that Court, also dated June 21, 1984, assessing attorney's fees in this matter at $1,000 with an additional $1,000 per day from the date of such order until the March 9, 1984 jury verdict is paid is reversed.

Jurisdiction relinquished.

Disposition

Reversed in part. Order vacated. Case remanded.


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