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DEER CREEK DRAINAGE BASIN AUTHORITY v. PACOMA (08/07/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 7, 1986.

DEER CREEK DRAINAGE BASIN AUTHORITY, A MUNICIPAL AUTHORITY, APPELLANT
v.
PACOMA, INC., (CONSTANTINI) OR REPUTED OWNERS OR WHOEVER MAY BE OWNERS, APPELLEES

Appeal from the Order of the Court of Common Pleas of Allegheny County, in case of Pacoma, Inc. v. Deer Creek Drainage Basin Authority, No. 81-24139.

COUNSEL

David E. Johnson, Tarasi, Tighe, Tierney & Johnson, P.C. for appellant.

Leonard M. Mendelson, with him, Andrew Raynovich, Hollinshead and Mendelson, for appellees.

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

Author: Macphail

[ 99 Pa. Commw. Page 506]

This is an appeal by Deer Creek Drainage Basin Authority (Authority) from an order of the Court of Common Pleas of Allegheny County granting the petition of Pacoma, Inc. (Pacoma) to strike off a municipal lien. We affirm.

The sole issue in the case involves the interpretation of Section 606 of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-606.*fn1

From the record we ascertain that on December 30, 1977 the Authority initiated a condemnation proceeding against Pacoma by filing a declaration of taking for the construction of a sanitary sewage collection and transportation system. A board of viewers was appointed at Pacoma's request which board awarded damages to Pacoma. At the hearing before that board, testimony was received from the Authority indicating that the Authority, pursuant to the provisions of Section 4.B(s) of the Municipal Authorities Act of 1945, Act of May 2,

[ 99 Pa. Commw. Page 5071945]

, P.L. 382, as amended, 53 P.S. § 306.B(s), determined that the front foot method of assessment of property owners for the cost of the sewer system should be utilized and that the figure of $7.00 per front foot was to be used for that purpose.

Pacoma appealed from the viewers' award. A jury trial was held and Pacoma was awarded a verdict of $45,545.00. At the trial, counsel for the Authority indicated that he was aware that the Authority was under an instruction from the court to present evidence it had with regard to benefits the Pacoma property realized as a result of the condemnation proceedings.*fn2 During the course of the trial, Pacoma's president was asked if the sewer line would benefit the property in any way. He replied in the negative.*fn3 The Authority's appraiser was asked the same question and replied, "yes sir, it is."*fn4 There was no elaboration on that answer and no reference made to the front foot assessment or to any other value of the benefit to the property.

No request was made by the Authority for a special charge on the matter of benefit to the Pacoma property and none was given by the trial court.

The verdict of the jury was appealed to this Court which upheld the award.*fn5

On September 4, 1981 the Authority filed a municipal claim against Pacoma in the sum of $19,635.00, together with interest, because Pacoma had failed to pay its assessment based upon $7.00 per front foot. Pacoma responded with a motion to strike alleging that the special benefit to its property from the sewer system had been fully and finally litigated in the eminent

[ 99 Pa. Commw. Page 508]

    domain proceedings hereinbefore noted. The Authority replied that an assessment on a front foot basis for the cost of the installation of the sewer system was not a "special benefit" to be included under the provisions of Section 606 of the Code and that the municipal claim against Pacoma was not duplicative of nor precluded by the jury's verdict in the eminent domain proceedings. The trial court sustained Pacoma's motion to strike.

We reject the Authority's contentions and will affirm the order of the trial court on the able and comprehensive opinion of Judge Emil E. Narick, filed September 5, 1985 and reported at 134 Pitt. L.J. 49 (1986).

Order

The order of the Court of Common Pleas of Allegheny County in the above-captioned matter is affirmed.

Disposition

Affirmed.


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