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COMMONWEALTH PENNSYLVANIA v. CARL S. SCHODDE (07/17/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 17, 1986.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT
v.
CARL S. SCHODDE, ET AL., APPELLEES

Appeals from the Order of the Court of Common Pleas of Allegheny County, in case of Carl S. Schodde, Norma L. Rall, Ruth S. Hartstein, Janet S. Duffy and Carl H. Schodde v. Commonwealth of Pennsylvania, Department of Transportation, Nos. GD 81-30280 and GD 81-30281.

COUNSEL

Michael J. Creighton, Assistant Counsel-in-Charge, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.

William P. Bresnahan, Rothman, Gordon, Foreman and Groudine, P.A., for appellees.

Judge Craig, and Senior Judges Blatt and Kalish, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 99 Pa. Commw. Page 51]

The Pennsylvania Department of Transportation (Department) appeals an order of the Court of Common Pleas of Allegheny County which affirmed an award for reasonable appraisal, attorney and engineering fees in the amount of $59,206.32. A Board of View had issued this award against the Department under Section 609 of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, added by Section 7 of the Act of December 29, 1971, P.L. 639, 26 P.S. § 1-609.

[ 99 Pa. Commw. Page 52]

In 1976 the Department filed two declarations of taking for certain properties owned by Carl S. Schodde, Norma L. Rall, Ruth S. Hartstein, Janet S. Duffy and Carl H. Schodde (condemnees), to which the condemnees timely filed preliminary objections, alleging there that the Department had committed a de facto taking as early as 1972 and 1973. Following evidentiary hearings, the Court of Common Pleas of Allegheny County issued a decision in 1980 sustaining these preliminary objections and declaring the Department's declarations of taking null and void. The Department appealed, and our Court reversed the trial court's order and remanded the matter so that the trial court could make findings of fact which would support its conclusion. The trial court thereafter issued an opinion setting forth more specific findings and restating its earlier conclusion that a de facto taking had occurred in 1972 and 1973.

No appeal was taken from this decision, and petitions, subsequently consolidated, were filed for the appointment of a Board of Viewers. The parties thereafter reached a settlement agreement as to general and specific damages for the properties, leaving only the issue of the condemnees' entitlement to reimbursement for attorney, engineering and appraisal fees to be contested before the Board of Viewers. This resulted in the award challenged here.

The Department initially contends that the condemnees were entitled to reimbursement only under the provisions of Section 610 of the Code, 26 P.S. § 1-610. And, of course, Section 610 pertinently establishes a $500 limit on the amount which a condemnee may receive as payment toward reasonable expenses incurred for appraisal, attorney and engineering fees when the condemnee is not eligible for reimbursement of such fees under Section 609, which in turn provides:

[ 99 Pa. Commw. Page 53]

The Department also contends that the trial court erred in failing to address the reasonableness of the fees awarded inasmuch as they were based upon a contingency agreement reflecting funds paid prior to the finding of a de facto taking. In this regard, we would preliminarily observe that the matter of the reasonableness of an attorney fee is within the sound discretion of the trial court. Benkovitz Appeal, 70 Pa. Commonwealth Ct. 230, 452 A.2d 1113 (1982). Moreover, the trial court's judgment in this respect is presumed correct, and absent some showing of an abuse of discretion, we may not interfere with the award. Id. Our review of the record in the instant case indicates that the amounts upon which the fees were based represent the difference between the amounts which the Department initially offered in settlement for various claims and the amounts eventually paid for those claims, and on the amounts of obligatory special damages claims which were over and above the amount originally offered by the Department. Under such circumstances, and cognizant that it took over five years to resolve the property compensation issues, we are not prepared to say that the fee was unreasonable or that the trial court abused its discretion in ordering its payment.

We will, therefore, affirm the order of the Court of Common Pleas of Allegheny County.

[ 99 Pa. Commw. Page 55]

Order in 3680 C.D. 1984

And Now, this 17th day of July, 1986, the order of the Court of Common Pleas of Allegheny County in the above-captioned matter is affirmed.

Order in 3681 C.D. 1984

And Now, this 17th day of July, 1986, the order of the Court of Common Pleas of Allegheny County in the above-captioned matter is affirmed.

Disposition

Orders affirmed.


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