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ROBERT M. HUGHES AND DORIS M. HUGHES v. COMMONWEALTH PENNSYLVANIA DEPARTMENT TRANSPORTATION (04/06/87)

decided: April 6, 1987.

ROBERT M. HUGHES AND DORIS M. HUGHES, HUSBAND AND WIFE, APPELLEES,
v.
COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, APPELLANT. ROY H. KINSINGER AND SUSIE KINSINGER, HUSBAND AND WIFE, APPELLEES, V. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, APPELLANT. MARSHALL T. HETZ AND MARVIN L. HETZ, APPELLEES, V. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, APPELLANT



Appeal from the Judgment entered May 17, 1985 of the Court of Common Pleas of Somerset County, Civil Division, at No. 593 Civil 1981. Appeal from the Judgment entered May 17, 1985 of the Court of Common Pleas of Somerset County, Civil Division, at No. 260 Civil 1982. Appeal from the Judgment entered May 17, 1985 of the Court of Common Pleas of Somerset County, Civil Division, at No. 261 Civil 1982.

COUNSEL

Jeffrey L. Giltenboth, Asst. Counsel, Com. of Pa., Dept. of Transp., Office of Chief Counsel, Pittsburgh, for appellant.

Nathaniel A. Barbera, Vincent J. Barbera, Somerset, for appellees.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., files a concurring and dissenting opinion in which Zappala, J., joins. Hutchinson, J., files a concurring and dissenting opinion.

Author: Mcdermott

[ 514 Pa. Page 303]

OPINION

The three matters listed herein were consolidated at trial due to a similar factual basis and an identical issue, being: whether section 611 of the Eminent Domain Code*fn1 is unconstitutional. Since the trial court determined that the section was in contravention of constitutional mandate, we assumed jurisdiction pursuant to 42 Pa.C.S. § 722(7).*fn2

The relevant facts of the respective cases are as follows.

No. 79 W.D. Appeal Docket 1985

On July 16, 1979, the Pennsylvania Department of Transportation (hereinafter PennDot) filed a declaration of taking, condemning the property of appellees Robert and Doris Hughes.*fn3 Estimated just compensation was offered in writing on July 17, 1979.*fn4 The property condemned was a

[ 514 Pa. Page 304]

    portion of prime farm land involved in the Hughes' farming operation. In 1978, pursuant to the imminent condemnation of their property, the Hughes sold their dairy herd and ceased all dairy operations, although they continued crop farming their land until the actual condemnation. After condemnation, the Hughes made no use of the condemned area.

No. 80 W.D. Appeal Docket 1985

On October 17, 1979, PennDot filed a declaration of taking on a portion of Roy and Susie Kinsinger's dairy farm. Estimated just compensation was offered in writing on October 19, 1979. The condemned property was again prime farm land which the Kinsinger's made no use of after the condemnation, except to remove crops which were planted prior to the filing of the declaration of taking. As a result of the condemnation of their land, the Kinsinger's vacated the uncondemned portion of their farm on July 10, 1981, and thereafter sold it on September 30, 1981.

No. 81 W.D. Appeal Docket 1985

PennDot filed a declaration of taking on October 17, 1979. PennDot offered estimated just compensation in writing on July 17, 1979. The condemned property was a portion of farm land attached to the dairy farm of Marshall and Marvin Hetz. After the condemnation, the Hetzes reduced the taken farm land's use to an exercise field for their cattle, thereby effectively diminishing the overall size of their dairy farm operation.

The amounts offered by PennDot in the preceding three cases were $37,775 to the Hughes, $26,940 to the Kinsingers, and $60,875 to the Hetzes. After a hearing before the Board of Viewers PennDot appealed to the Court of Common Pleas of Somerset County wherein juries returned verdicts of $164,300 for the Hughes, $108,000 for the Kinsingers and $133,000 for the Hetzes. PennDot eventually paid the verdicts absent delay compensation. A non-jury trial was held resulting in a verdict of delay damages in

[ 514 Pa. Page 305]

    favor of the respondents. In post-trial motions, Penndot refused to pay delay damages asserting the provisions of section 611 of the Eminent Domain Code which reads:

§ 1-611. Delay compensation

The condemnee shall not be entitled to compensation for delay in payment during the period he remains in possession after the condemnation, nor during such period shall a condemnor be entitled to rent or other charges for use and occupancy of the condemned property by the condemnee. 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: Provided, however, That no compensation for delay shall be payable with respect to funds paid on account, or by deposit in court, after the date of such payment or deposit. Compensation for delay shall not be included by the viewers or the court or jury on appeal as part of the award or verdict, but shall at the time of payment of the award or judgment be calculated as above and added thereto. There shall be no further or additional payment of interest on the award or verdict.

26 Pa.S. § 1-611 (emphasis added).

The learned and able trial judge held section 611 unconstitutional on the reason that if the uses of the land to the condemnee are diminished by the condemnation, notwithstanding the condemnee's possession, any formula or mandate of the Commonwealth that does not provide compensation for that diminished use is not just compensation and, therefore, unconstitutional under the United States and Pennsylvania Constitutions.*fn5

[ 514 Pa. Page 306]

Section 611 denies compensation during the period a condemnee remains in possession and balances that denial by prohibiting the Commonwealth rent or charges for the use and occupancy of the condemned property by the condemnee.

Section 611 has an appealing simplicity, and if it provides for "just compensation", a requirement written in stone and bronze in both the United States and Pennsylvania Constitutions, it is also constitutional.*fn6

What is "just compensation" cannot be determined by the exclusive fiat of the General Assembly, for like all others they cannot be the judge in their own case. The determination of what is "just" between the Commonwealth and a condemnee is the function of the judiciary.

The right of the legislature of the State, by law, to apply the property of the citizen to the public use, and then to constitute itself the judge in its own case, to determine what is the 'just compensation it ought to pay therefor, or how much benefit it has conferred upon the citizen by thus taking his property without his consent, or to extinguish any part of such 'compensation' by prospective conjectural advantage, or in any manner to interfere with the just powers and province of courts and juries in administering right and justice cannot for a moment be admitted or tolerated ...


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