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MATTER CONDEMNATION RIGHTS WAY AND EASEMENTS SITUATE DERRY TOWNSHIP (07/18/88)

decided: July 18, 1988.

IN THE MATTER OF CONDEMNATION OF RIGHTS OF WAY AND EASEMENTS SITUATE IN DERRY TOWNSHIP, WESTMORELAND COUNTY, PENNSYLVANIA, BY THE DERRY TOWNSHIP MUNICIPAL AUTHORITY FOR SEWAGE PURPOSES. PROPERTY OF STANLEY LASZCZYNSKY. STANLEY LASZCZYNSKY, APPELLANT


Appeal from the Order of the Court of Common Pleas of Westmoreland County, in the case of In the matter of condemnation of rights of way and easements situate in Derry Township, Westmoreland County, Pennsylvania, by the Derry Township Municipal Authority for sewage purposes -- Property of Stanley Laszczynsky, No. 1353 of 1981.

COUNSEL

H. Nevin Wollam, for appellant.

James E. Kelley, Jr., Lightcap, McDonald, Moore & Mason, for appellee.

Judges Barry and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 118 Pa. Commw. Page 2]

Stanley Laszczynsky, the condemnee, appeals from an order of the Court of Common Pleas of Westmoreland

[ 118 Pa. Commw. Page 3]

County awarding him $7000.00 in damages and $6124.30 for costs, fees and expenses.

In June of 1980, the Derry Township Municipal Authority filed a declaration of taking which appropriated a permanent easement in the condemnee's property. The condemnor planned to construct and install a sewer line. A contractor did construct the sewer line; however, it was outside the condemned right of way. The condemnor never relinquished the easement obtained in the declaration of taking.

The condemnee filed a petition for the appointment of viewers. The parties agreed that the construction of the sewer line outside the condemned right of way constituted a de facto taking. The Board of Viewers filed its report in April of 1984. The condemnee appealed and a non-jury trial was held in February of 1987. The trial court found that the condemnee was entitled to $5000.00 for the de jure condemnation and $5000.00 for the de facto condemnation; the court reduced this amount by $3000.00, which the court found to represent the benefit conferred upon the property because of the construction of the sewer line. The court also awarded $6124.30 for costs, fees and expenses. The condemnee then appealed to this Court.

In an eminent domain case, our review is limited to determining whether the trial court abused its discretion or committed an error of law. Redevelopment Authority of the County of Washington v. Sepesy, 107 Pa. Commonwealth Ct. 223, 528 A.2d 287 (1987). Keeping in mind this limited scope of review, we will review the condemnee's allegations of error.

The condemnee first argues that the trial court erred in assessing benefits in a de facto taking. Section 606 of the Eminent Domain Code, Act of June 22, 1964, P.L. 84, as amended, 26 P.S. ยง 1-606 (Supp. 1988), ...


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