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In re Condemnation of Property Located in Lower Windsor Township

December 3, 2009

IN RE: CONDEMNATION OF PROPERTY LOCATED IN LOWER WINDSOR TOWNSHIP, YORK COUNTY, PENNSYLVANIA, FOR THE PURPOSE OF CREATING PUBLIC RECREATION AREAS PURSUANT TO SECTION 2501 OF THE COUNTY CODE
LAUXMONT HOLDINGS, LLC, CONDEMNEE
v.
COUNTY OF YORK, CONDENMOR
APPEAL OF: LAUXMONT HOLDINGS, LLC



The opinion of the court was delivered by: Judge Butler

Argued: September 17, 2009

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JOSEPH F. McCLOSKEY, Senior Judge.

OPINION

Lauxmont Holdings, LLC (Lauxmont) appeals the October 2, 2008 order of the Court of Common Pleas of York County (trial court) denying a request to compel payment of interest on delay compensation paid on estimated just compensation (EJC) by the County of York (County). The issues before this Court include: 1) whether delay compensation is due at the same time as the EJC payment or at the time of the final award of compensation, and 2) if delay payment is due at the same time as the EJC payment, whether the condemnee may claim interest on the delay compensation amount if it is not paid on time. For the following reasons, we affirm the trial court.

On May 5, 2004, the County exercised its power of eminent domain to acquire property owned by Lauxmont. Lauxmont relinquished possession of the property on November 9, 2005. The County paid Lauxmont $2,000,000 as EJC on November 23, 2005, based on an appraisal by Elliot Weinstein (Weinstein). Lauxmont believed that this amount was grossly inadequate. In October of 2006, a Board of Viewers held hearings on the amount of just compensation to be awarded to Lauxmont. The Board of Viewers determined that the EJC should have been $10,500,000. Both parties appealed the decision to the trial court.

Following the issuance of the Board of Viewers' report, the County hired a new attorney who recognized that Weinstein's appraisal grossly underestimated the value of the property. Weinstein was fired, and the County requested that the EJC petition be held in abeyance until three new appraisals could be obtained. Each of the new appraisals valued the property in a range from $7,500,000 to $7,950,000. On September 20, 2007, the County paid Lauxmont an additional $5,500,000 as the revised EJC. There is no dispute that the County owed Lauxmont delay compensation on the $5,500,000, which was determined to be $869,302 by both parties. On December 10, 2007, Lauxmont filed a petition to compel payment of the delay compensation on the EJC. On March 18, 2008, the trial court denied Lauxmont's motion to compel payment.

On July 7, 2008, the case proceeded to a jury trial which ultimately awarded Lauxmont $17,250,000 as just compensation for the taking of its property. Neither the County nor Lauxmont appealed the verdict. On August 13, 2008, the County paid the delay compensation on the revised EJC for the period from November 9, 2005 (the date possession was relinquished) through September 20, 2007 (the date the County paid the revised EJC), i.e., the $869,302 determined by the parties to be the delay compensation on the revised EJC.*fn1 Lauxmont, however, had already filed a post-trial motion to require the County to pay $64,208 as of July 31, 2008, plus $196 per diem thereafter, as interest on the $869,302 portion of the delay compensation paid. The trial court denied the motion, and Lauxmont filed an appeal with this Court.*fn2

Lauxmont argues that the County was required to pay the delay compensation of $869,302 on September 20, 2007, the date of payment of the revised EJC, as the parties were then able to calculate the delay compensation due. Because the delay compensation was not paid at that time, Lauxmont argues that as a matter of due process, it is entitled to interest on the delay compensation covering the period from September 20, 2007, to August 13, 2008, the date that the delay compensation was ultimately paid. We disagree with Lauxmont. The mere ability to calculate a debt as of a date certain, does not mandate payment as of that date under constitutional or statutory law.

Section 713(a) of the Eminent Domain Code (Code),*fn3 26 Pa.C.S. § 713(a), states:

Compensation for delay in payment shall be paid at an annual rate equal to the prime rate as listed in the first edition of the Wall Street Journal published in the year, plus 1%, not compounded, from:

(1) the date of relinquishment of possession of the condemned property by the condemnee; or

(2) if possession is not required to effectuate condemnation, the date of condemnation.

Further, Section 713(c) of the Code*fn4 provides:

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 under subsection (a) and added to the award or judgment. There shall be ...


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