Appointment of Viewers to Assess Damages in Acquiring an Easement for Interceptor Sewer Line
Appointment of Viewers to Assess Damages in Acquiring an Easement for Interceptor Sewer Line
Opinion of the Court
Opinion by
The Lackawanna River Basin Sewer Authority (Authority) appeals here from an order of the Court of Common Pleas of Lackawanna County holding that the Authority is not entitled to a set-off pursuant to Section 4 of the Act of July 1,1937 (Act)
In 1974, the Authority filed a declaration of taking for the purposes of constructing an interceptor sewer line over property owned by CSC. Following a contested hearing before the duly appointed Board of Viewers, a report was issued awarding CSC $12,-000.00 for condemnation damages and $500.00 for attorney and appraisal fees. Judgment was entered on September 30, 1982 in favor of OSO and against the Authority in the amount of $18,489.85.
The Authority then filed a petition for set-off against the award pursuant to Section 4 of the Act, 53 P.S. §7234,
Our scope of review of this decision of a court of common pleas in an eminent domain case is limited to determining whether or not the court committed an abuse of discretion or an error of law. In re Condemnation by Com., Dept. of Transp., of Right-of-Way for Legislative Route 02302, 54 Pa. Commonwealth Ct. 478, 422 A.2d 711 (1980).
In dismissing the Authority’s petition for set-off, the court of common pleas stated in its January 1983 opinion that, “by virtue of 53 P.S.A. 7274, [
The Authority contends that the inconsistency in reasoning between the two opinions is proof that the court’s decision to dismiss the petition for set-off was not only arbitrary but constituted legal error. It further argues that, under Section 4 of the Act as construed in City of Pittsburgh v. Gribbin, 51 D. & C. 587 (1944), “.. . Municipal Claims, no matter how derived, may be set-off against a municipal obligation, no matter how obtained.”
The Authority’s petition for set-off was ancillary to an award of condemnation damages and, as such, we are bound by law
Damages payable to a condemnee . . . shall be subject to a lien for all taxes and municipal claims assessed against and all mortgages, judgments and other liens of record against the property for which particular damages are payable, existing at the date of the filing of the declaration of taking, and said liens shall be paid out of the damages in order of priority before any payment thereof to the condemnee, unless released. (Emphasis added.)
Moreover, the comments to Section 521 read in part that “[i]t is intended that the liens shall attach only to the damages payable from the property on which the mortgage, judgment or other charge existed.” Our analysis of this provision, together with its accompanying comments,
A close examination of the petition for set-off reveals that the liens which the Authority sought to set-off here were not “assessed against . . . the prop
Accordingly, we will affirm the order of the court of common pleas.
Order
And Now, this 11th day of May, 1984, the order of the Court of Common Pleas of Lackawanna County in the above-captioned matter is hereby affirmed for the reasons set forth in the attached opinion.
P.L. 2611, added by Section 1 of the Act of April 15, 1943, P.L. 53, 53 P.S. §7234.
Damages were initially awarded as follows:
Amount of Award $12,000.00
Partial Payment ($ 580.00)
11,420.00
Interest $ 6,569.85
Pees Awarded 500.00
$18,489.85
Section 4 of the Act reads :
If any person who is indebted to the political subdivision on account of delinquent, taxes, municipal claims or judgment as aforesaid, and who has a claim or account against such political subdivision, shall, upon demand of the political subdivision, refuse, neglect or fail to enter into an agreement as hereinbefore provided, such political subdivision may petition the court of common pleas of the county, . . . asking for a rule to show cause why a decree should not be*371 made that the amount [owed] ... be set-off against the claim or account which such person has against the political subdivision, ....
The Authority asserted in its petition to correct the amount of the judgment that the amount of interest had been incorrectly calculated and that the actual interest due was only $5,388.00, thus reducing the real debt to $17,308.00. In its January 1983 opinion, the court of common pleas agreed and OSO has not appealed the the reduction in interest payable.
Section 23 of the Act of May 16, 1923, P.L. 207, 53 P.S. §7274.
Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. §1-521.
See Section 303 of the Eminent Domain Code, as amended, 26 P.S. §1-303 which reads, in part, that “[i]t is intended by this act to provide a complete and exclusive procedure and law to govern all condemnations of property for public purposes and the assessment of damages therefor, . . . .”
We note that while the Authority is correct in stating that in the City of Pittsburgh v. Gribbin, 51 D. & C. 587 (1944), the court
See Section 1939 of the Statutory Construction Act of 1972, 1 Pa. C. S. §1939 (comments on report of committee which drafted statute may be consulted in the construction or application of the original provisions of the statute).
Reference
- Full Case Name
- Appointment of Viewers to Assess Damages in Acquiring an Easement for Interceptor Sewer Line Etc. Lackawanna River Basin Sewer Authority
- Cited By
- 1 case
- Status
- Published