Erb v. Commonwealth
Erb v. Commonwealth
Opinion of the Court
Opinion by
In this eminent domain case, the Commonwealth (appellee-condemnor), in separate proceedings, condemned two tracts owned by David S. Erb (appellantcondemnee) which were located on opposite sides of South Hanover Street, North Coventry Township, Chester County. A Board of View was appointed and after a view of both properties and after hearings concerning both properties, awarded $79,743 to the appellant-condemnee for the first tract (under the Docket No. 467) and $9,500 to the appellant-condemnee for the second tract (under the Docket No. 485). While making separate awards pursuant to the two separate condemnations, the viewers noted that the two properties “were actually acquired, developed and used by the appellantcondemnee as a separate single property under unity of use for business purposes.”
The issue is whether the appellee-condemnor, in its appeal, satisfied the requirements of Sections 516 (a)(2) and (a)(4) of the Eminent Domain Code which state:
“§516 Appeals
“(a) The appeal shall set forth: ... (2) A brief description or identification of the property involved. . . . (4) Objections, if any, to the viewer’s report, other than to the amount of the award.” There can be no doubt that the appellee-condemnor complied with Section 516(a)(4) in that it was objecting only to the amount of the award.
A more difficult question is whether the appelleecondemnor complied with Section 516(a)(2). This Court recently dealt with a somewhat similar situation in Exxon Corporation v. Commonwealth of Pennsylvania, Department of Transportation and Law, 10 Pa. Commonwealth Ct. 301, 312 A. 2d 121 (1973), wherein the condemnor’s appeal never mentioned the condemneelessee, Exxon, and only referred to the award and interests of the condemnee-lessor, Law. The condemnor’s failure to comply with Sections 516(a)(1), (a)(2), and (a)(3) caused this Court to conclude that “the matter in controversy was not sufficiently identified by the condemnor to include appeal of the award to Exxon.”
Furthermore, the appellant-condemnee was not misled by reason of the above discrepancies. Indeed, upon notification of the appeal, appellant-condemnee took an appeal from the viewer’s award as to the property identified in No. 485, i.e., the property appellant-condemnee claimed was identified in the appeal. As able counsel for the appellant-condemnee noted in oral argument, the appeal of the property identified in No. 485 was seemingly necessary in order to protect the record on the unity of use doctrine. See Section 605 of the Eminent Domain Code. Appellant-condemnee’s appeal of No. 485 certainly indicates that he understood that appellee-condemnor had appealed No. 467.
Accordingly, we enter the following
Order
Now, November 7, 1973, the decision of the lower court in refusing condemnee’s motion to quash is affirmed.
Reference
- Full Case Name
- David S. Erb v. Commonwealth of Pennsylvania, Department of Transportation
- Cited By
- 1 case
- Status
- Published