Lichtenstein v. Pennsylvania Turnpike Commission

• Citation: 158 A.2d 461,398 Pa. 415
• Parties: Morris Edwin LICHTENSTEIN v. PENNSYLVANIA TURNPIKE COMMISSION, Appellant.
• Decision Date: 31 December 1959
• Court: United States State Supreme Court of Pennsylvania

158 A.2d 461

398 Pa. 415

Morris Edwin LICHTENSTEIN v. PENNSYLVANIA TURNPIKE COMMISSION, Appellant.

Supreme Court of Pennsylvania.

December 31, 1959.

As Amended on Denial of Rehearing March 14, 1960.

Hubert P. Earle, Chief Counsel, Prall B. Roads Asst. Counsel, Thomas E. Waters, Harrisburg, for appellant.

Raymond Pearlstine, Wisler, Pearlstine & Talone Edward J. Hardiman, Norristown, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO BENJAMIN R. JONES, COHEN, BOK and McBRIDE, JJ.

CHARLES ALVIN JONES, Chief Justice.

The Pennsylvania Turnpike Commission condemned and entered upon certain property of Morris Edwin Lichtenstein, the plaintiff, in Towamencin Township, in Montgomery County, for use in the construction of the Delaware River Extension of the Pennsylvania Turnpike. In due course, Lichtenstein petitioned the Court of Common Pleas of Montgomery County for the appointment of viewers for the ascertainment and determination of the damages due him for the Commission's appropriation of his property. The viewers filed their report on June 24, 1958. Therein they awarded the plaintiff damages in the sum of $84,800. No exceptions were filed to the viewers' report nor was an appeal taken from their award which automatically became final.

On September 19, 1958, almost three months after the final award, (Lichtenstein having made numerous demands for payment in the interim) the Commission tendered him a check for $84,800 which he refused to accept because the sum did not include interest from the date of the viewers' award. The Commission persisted in refusing to pay interest on the award and a few days later petitioned the Court of Common Pleas of Montgomery County to order Lichtenstein to satisfy the award of record upon the Commission's paying to him the sum of $84,800. The court granted a rule on the Commission's petition calling upon Lichtenstein to show cause why satisfaction of the award should not be entered, as prayed for in the Commission's petition. After argument, the court discharged the rule and ordered the Commission to pay interest on the award at the rate of 6% from June 24, 1958, the date of the award's entry, until the date of payment. It is from that order that the Commission took this appeal.

The Act of April 25, 1929, P.L. 777, No. 328, Section 1, as amended by the Act of March 26, 1931, P.L. 10, No. 7, Section 1, 26 P.S. § 43, provides that 'The amount of damages allowed in a report of viewers for the taking, injury or destruction of property by the exercise of the right of eminent domain shall, as finally confirmed, bear interest at the rate of six per centum per annum from the date of the filing of the report.'

It has been held that the foregoing statutory provision was not intended to bind the Commonwealth. In Culver v. Commonwealth, 348 Pa. 472, 474-475, 35 A.2d 64, 65, after noting that 'The learned court below was of the opinion that the Act of April 25, 1929, P.L. 777, as amended by the Act of March 26, 1931, P.L. 10, 26 P.S. § 43, has obligated the Commonwealth to pay interest under the facts of this case--this being an eminent domain proceeding', this court then said that 'A reading of this statute reveals that this was error. In Tunison v. Commonwealth, supra [347 Pa. 76, 31 A.2d 521], we said (347 Pa. at page 78, 31 A.2d at page 522): '* * * it is axiomatic that a statute is never presumed to deprive the state of any prerogative, right or property unless the intention to do so is clearly manifest, either by express terms or necessary implication. Baker v. Kirschnek, 317 Pa. 225, 176 A. 489; Commonwealth v. Trunk, 320 Pa. 270, 182 A. 540; see 59 C.J. 1103, § 653.' The Act of 1929, as amended, does not specifically mention the Commonwealth nor does it indicate any intendment on the part of the legislature to deprive the State of its nonliability for the payment of interest on its obligations.'

The appellant relies on the ruling in Pennsylvania Turnpike Commission v. Smith, 350 Pa. 355, 363, 39 A.2d 139, 143, where this court affirmed the modification by the court below of an award of arbitrators against the Turnpike Commission, under construction contracts, to the extent of disallowing the interest included in the award. After citing Culver v. Commonwealth, supra, and quoting therefrom to the same effect as hereinabove, it was held that 'The Act * * * creating the Turnpike Commission does not indicate any intention on the part of the legislature to require the Commonwealth to pay interest under the circumstances of this case.' (Emphasis supplied). That statement is literally correct. Manifestly, the Act of 1929 does not require the Commonwealth to pay interest in the given circumstances. The Culver case definitely so ruled. The Smith case did not actually discuss the problem there posed for decision namely, whether the Turnpike Commission is liable for interest on awards of arbitrators made against it. The question in that case was not whether the Commonwealth is...