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MATTER CONDEMNATION A CERTAIN PARCEL LAND TOWNSHIP SOUTH PARK (03/19/86)

decided: March 19, 1986.

IN RE: THE MATTER OF CONDEMNATION OF A CERTAIN PARCEL OF LAND IN THE TOWNSHIP OF SOUTH PARK, ALLEGHENY COUNTY, PENNSYLVANIA BY THE TOWNSHIP OF SOUTH PARK, ALLEGHENY COUNTY, PENNSYLVANIA FOR PUBLIC STREET AND ROAD PURPOSES, NOW OR FORMERLY OF STEPHEN B. SLOVAK AND ROSE SLOVAK, HIS WIFE, ET AL. WILLIAM J. SCHWARTZ AND DONNA J. SCHWARTZ, HIS WIFE, APPELLANTS


Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of In Re: The Matter of Condemnation of a certain parcel of land situate in the Township of South Park, Allegheny County, Pennsylvania, by the Township of South Park, Allegheny County, Pennsylvania, for public street and road purposes, now or formerly of Stephen B. Slovak and Rose Slovak, his wife; Frank Thomas and Ethel Thomas, his wife; John J. Boff and Joan Boff, his wife; Kenneth Thompson and Lillian Thompson, his wife, and Bruce J. Broglie and Mary E. Broglie, his wife, No. GD 81-28077.

COUNSEL

W. J. Helzlsouer, for appellants.

No appearance for appellees.

Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 96 Pa. Commw. Page 61]

This is an eminent domain case wherein the Appellants, William J. Schwartz and Donna J. Schwartz, appeal an order of the Court of Common Pleas of Allegheny County which denied their petition to modify an earlier court order. That earlier court order provided for the payment by South Park Township (Township) of just compensation into the court in return for the prothonotary marking the Appellants' petition for appointment of viewers settled, discontinued and ended, with prejudice. Appellants contend that the common pleas court erred when it failed to include delay damages and limited reimbursement of appraisal costs and attorney's fees in the amount that the Township was required to pay into the court. We affirm in part and reverse in part.

The following facts are pertinent. Appellants were the owners of a parcel of land subject to a Declaration of

[ 96 Pa. Commw. Page 62]

Taking filed by the Township on March 11, 1973. Appellants filed a petition for appointment of viewers in 1981 and viewers were appointed. The Board of View filed its report with the court on February 14, 1984 wherein it fixed the amount of just compensation at $7,500 and also fixed the date of relinquishment of possession for delay damage purposes at March 11, 1973. Neither Appellants nor the Township appealed that report. The Township encountered some difficulties with the Appellants regarding the method of payment and subsequently filed a petition with the court to pay the amount of just compensation into the court. On April 6, 1984, an order was entered by the common pleas court authorizing the Township to pay the amount of the just compensation found by the Board of View, $7,500, into the court as full and complete satisfaction of the award of the Board of Viewers and releasing the Township from any further liability to the Appellants. On May 24, 1984 the Township deposited the funds with the common pleas court and the prothonotary marked the docket as settled, discontinued and ended with prejudice. On July 6, 1984, Appellants petitioned the court to authorize payment of the funds so deposited to them and to modify the order of April 6, 1984 to include delay damages under Section 611 of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-611, and limited reimbursement of appraisal costs and attorney's fees under Section 610 of the Code, 26 P.S. § 1-610. The common pleas court denied Appellants' petition to modify on October 11, 1984. It is from that order that Appellants now appeal.

In this appeal, Appellants argue that the exclusion of delay damages under Section 611 of the Code and reimbursement of attorney's fees and appraisal costs under Section 610 of the Code was error in that they were entitled

[ 96 Pa. Commw. Page 63]

    to those awards as a matter of law and that such errors were not waived by their failure to seek a modification of the order within thirty days of the entry of that order. A final order or judgment may be amended by the court to correct its own errors, omissions, or oversights. Davis v. Commonwealth Trust Co., 335 Pa. 387, 7 A.2d 3 (1939). A petition to amend a final order or judgment is addressed to the sound discretion and the equitable power of the hearing court, and that court's exercise of its power will not be reversed in the absence of a manifest abuse of discretion or an error of law. First Seneca Bank & Trust Co. v. Laurel Mountain Development Corp., 324 Pa. Superior Ct. 352, 471 A.2d 875 (1984). Generally, a motion to amend a final order or judgment will not be granted unless the fatal defect claimed is apparent on the face of the record. Haggerty v. Fetner, 332 Pa. Superior Ct. 333, 481 A.2d 641 (1984). The precise issue presented for our resolution, then, is whether the Appellants' entitlement to an award of delay damages and partial reimbursement of attorney's fees and appraisal costs is a matter of right so that the failure of the common pleas court to include those awards in its order of April 6, 1984 constitutes an error of law requiring reversal of its denial of their petition to amend that order. We think that it does.

We initially note that it is the award of the Board of View, when not appealed, and not the order authorizing payment of just compensation into the court, which constitutes the final judgment in eminent domain cases. Sections 515 and 522 of the Code; 26 P.S. §§ 1-515 and 1-522; Hafez v. Redevelopment Authority of the City of Wilkes-Barre, 19 Pa. Commonwealth Ct. 202, 339 A.2d 644 (1975). See also Snitzer, Pennsylvania Eminent Domain § 523. We also recognize that ...


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