Gitlin v. Pennsylvania Turnpike Commission
| Decision Date | 13 March 1956 |
| Docket Number | 4379 |
| Citation | 121 A.2d 79,384 Pa. 326 |
| Parties | Benjamin GITLIN, Louls Gitlin, Abraham Gitlin and William Gitlin, v. PENNSYLVANIA TURNPIKE COMMISSION, Appellant. |
| Court | Pennsylvania Supreme Court |
Argued January 3, 1956
Appeal, No. 4, Jan. T., 1956, from order of Court of Common Pleas of Montgomery County, April T., 1953, No. 247, in case of Benjamin Gitlin et al. v. Pennsylvania Turnpike Commission. Order affirmed.
Appeals by property owners and Pennsylvania Turnpike Commission from award by board of viewers.
Order entered dismissing appeals and affirming award, opinion by DANNEHOWER, J. Pennsylvania Turnpike Commission appealed.
Order affirmed at the appellant's costs.
Thomas E. Waters, with him Harry C. Pepper, Edward L Springer, Deputy Attorney General, Herbert B Cohen, Attorney General, and Waters, Cooper & Gallagher, for appellant.
Conrad G. Moffett, with him Hankin, Hankin & Shanken, for appellees.
Before STERN, C.J., STEARNE, JONES, BELL, CHIDSEY and MUSMANNO, JJ.
On March 4, 1952, the Pennsylvania Turnpike Commission formally adopted a resolution, pursuant to authority conferred on it by the Act of May 23, 1951, P.L. 335, locating its Delaware River Extension and condemning the private property necessary therefor, according to attached plan approved by the Governor and the Department of Highways. The resolution established the center line of the proposed extension by compass directions and distances and fixed the width of the right of way at one hundred feet on each side of the center line for a total width of two hundred feet together with such additional lands as were necessary for the slopes of cuts and fills and such further lands as were deemed necessary by the Commission "For ramp approaches, maintenance sheds, gasoline stations, restaurants, power facilities, waste banks, borrow pits and other facilities including tunnels ...."
At the date of the resolution (viz., March 4, 1952), the plaintiffs were the owners of certain property in Upper Moreland Township, Montgomery County, containing 8.281 acres and improved with two dwellings. The property fronted on Easton Road, highway Route 611, which, in the locality, runs in an almost north and south direction. The center line of the turnpike extension, as described in the resolution, ran through the plaintiffs' property from west to east, and the two hundred foot strip thereby appropriated lay to the north of the two dwellings and other buildings located on the plaintiffs' property. Some fourteen months later, the Commission, deeming it essential that an interchange at Route 611 be constructed, appropriated additional property of the plaintiffs to the extent of 7.14 acres in all. This increased appropriation, which included the two houses, was accomplished by means of a revised plan formally adopted by the Commission on May 8, 1953.
On the plaintiffs' petition, the court below appointed a board of view for the ascertainment of the damages due the plaintiffs for the appropriation of their property. At the hearing before the viewers, the plaintiffs offered testimony, over the Commission's objection, as to the value of their condemned property both at the date of the original resolution of March 4, 1952, and at the time of the Commission's adopting of the revised plan on May 8, 1953. The question as to which date should be taken in determining the value of the property appropriated was considered to be of particular importance by reason of the fact that, between the two dates, the zoning regulations of the township were amended. Thereby, the zoning classification of the plaintiffs' property, inter alia, was changed from "A Residential" to "G.G. Industrial" with a resultant increase in the value of the property in the opinion of the plaintiffs' real estate experts.
The Commission contends that the condemnation took place in its entirety with the passage of the resolution of March 4, 1952, whereas the plaintiffs maintain that the two hundred foot strip was all of their property that was condemned by the resolution and that the balance of the appropriation did not occur until the Commission formally adopted the revised condemnation plan on May 8, 1953. The viewers approved the latter contention and appraised the value of the whole of the appropriated property accordingly. As a compromise between the two dates in figuring the damages due detention of payment, the viewers adopted four per cent instead of six as the rate per annum of the damage for delay in payment of the value of the property taken.
The Commission filed exceptions in the court below to the viewers' report and award, as did also the plaintiffs who charged error in the viewers' failure to conclude as a matter of law that the effective date of the taking of the property was May 8, 1953. The Commission's exceptions, while more extensive than the owners', went substantially to two matters, viz., (1) the action of the viewers in receiving testimony as to the value of the condemned property on May 8, 1953, as well as on March 4, 1952, and (2) the viewers' allowance in their award of an item for damages for delay in payment. The learned court below satisfactorily disposed of all exceptions in an able and comprehensive opinion and entered an order overruling the exceptions and confirming absolutely the viewers' report and award from which order the Commission has appealed.
Nothing more would need be said with respect to the appellant's contentions were it not for the persistence with which it insists upon advancing the argument that it is not liable for damages for delay in payment of the sums due for property which it appropriates by condemnation. See, also, Simpson v. Pennsylvania Turnpike Commission, 384 Pa. 335, 121 A.2d 84. The appellant bottoms this contention upon the assertion that the Commonwealth is not liable in damages for delay in payment for property condemned by it and that, since the Turnpike Commission is an instrumentality of the Commonwealth, it is likewise free from liability in such regard. The fallacy in the argument is twofold: (1) the major premise is erroneous and (2) the Commission is not the Commonwealth. And, even if it were entitled to the sovereign's immunity from liability for interest, it would still be answerable in damages for delay in payment for property condemned. In Fidelity-Philadelphia Trust Company v. Commonwealth, 352 Pa. 143, 145, 42 A.2d 585, the principal question for decision was "whether an owner of property appropriated by or in behalf of the Commonwealth of Pennsylvania through condemnation is entitled to damages for delay in payment of the sum ascertained to be reasonable compensation for the property so taken." We unequivocally answered that question in the affirmative. Nor could the rule be otherwise without palpably violating the State Constitution.
Article I, § 10, of the Constitution expressly ordains that private property shall not be taken or applied to public use without just compensation being first made or secured. It has long been recognized that one of the elements to be taken into consideration in determining what is just compensation for property condemned is the damage due to...
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