19 Pa. Commw. 287 | Pa. Commw. Ct. | 1975
Opinion by
In Patterson v. County of Allegheny, 15 Pa. Commonwealth Ct. 228, 325 A. 2d 484 (1974), this Court, sitting as a panel of three judges, held that Section 610 of the Eminent Domain Code
On September 21, 1970, the Pennsylvania Department of Highways (now the Department of Transportation and hereinafter referred to as the Commonwealth) condemned .436 acres of property owned by Harry M. and Anna E. Gehris (Appellees) in Muhlenberg Township, Berks County, for highway improvement purposes, and tendered estimated just compensation of $7,900 on December 1, 1970. The board of viewers appointed on Appellees’ petition subsequently awarded Appellees $27,-500.00 plus detention damages, and the Commonwealth appealed this award to the Court of Common Pleas of Berks County. Following a jury trial, a verdict was returned in favor of Appellees in the sum of $26,000.00, and the trial judge thereafter molded the verdict to allow the maximum reimbursement for Appellees’ appraisal fees under Section 610 of the Code. The parties stipulated in the court below that these appraisal expenses exceeded the $500.00 allowed by Section 610 and were incurred subsequent to the effective date of that section. The Commonwealth’s motion to strike that portion of the verdict which was molded to include appraisal fees was denied by the lower court en banc without the benefit of our de
Section 610 provides:
“The owner of any right, title or interest in real property acquired or injured by an acquiring agency, who is not eligible for reimbursement of such fees under section 406(e), 408 or 609 of this act, shall be reimbursed in an amount not to exceed five hundred dollars ($500) as a payment toward reasonable expenses actually incurred for appraisal, attorney and engineering fees.”
This provision, together with the other amendments to the Code in 1971, was given immediate effect on the date of their approval, December 29, 1971. Act of December 29, 1971, P.L. 635, §11. The contrast between the language of §11 and that of §3 of the amendatory Act of December 5, 1969, P.L. 316, providing “[t]his act shall take effect immediately and shall apply to all condemnation proceedings effected thereafter,...” has created some uncertainty of whether the Legislature intended to give the 1971 amendments retroactive effect to condemnations occurring before its effective date. See Snitzer, Pennsylvania Eminent Domain, §302 (1973 Cum. Supp.). This uncertainty was to some extent clarified by the Note of the Joint State Commission to Section 302 of the Code, 26 P.S. §1-302, declaring that “[t]he amendatory Act of 1971, December 29, P.L. 635, Act No. 169, took effect immediately and is thus applicable to all condemnations on or after that date.” This Court gives considerable weight to the comments of the Commission
Given the carefully structured provisions of Section 302 relating to the prospective or retrospective application to be given the respective Articles of the Code and the Note of the Joint Statement Commission thereto, the lower court’s reliance upon Creighan v. Pittsburgh, 389 Pa. 569, 132 A. 2d 867 (1957) and Pope v. Pennsylvania Thresherman & Farmers’ Mutual Casualty Insurance Co., 176 Pa. Superior Ct. 276, 107 A. 2d 191 (1954), construing statutes less specific as to their intended application, was misplaced. Nor can we agree that Section 610 must be read in pari materia to Section 519, 26 P.S. §1-519,
Finally, we find Appellees’ contention that the prospective application of Section 610 adopted in Patterson v. County of Allegheny, supra, would deprive them of the full “just compensation” guaranteed by the Fifth Amendment of the United States Constitution and Article V, Section 10 of the Pennsylvania Constitution to be without merit. Except as authorized by statute, expert witness fees are not taxable as costs in eminent domain proceedings. Kling Appeal, 433 Pa. 118, 249 A. 2d 552 (1969). Nor are attorneys’ fees and other expenses incidental to an eminent domain proceeding embraced within the constitutional concept of “just compensation for land taken by eminent domain.” Dohany v. Rogers, 281 U.S. 362 (1930); United States v. 15.3 Acres of Land, 158 F. Supp. 122 (M.D. Pa. 1957); see also 4A Nichols on Eminent Domain. §14.249[3] (3rd ed. 1971) (1974 Cum. Supp.).
Order
And Now, this 22nd day of May, 1975, the order of the Court of Common Pleas of Berks County granting to Harry M. and Anna E. Gehris appraisal fees in the amount of $500.00 is hereby reversed.
. Act of June 22, 1964, Special Session, P.L. 84, as added by the Act of December 29, 1971, P.L. 635, 26 P.S. §1-610.
. The verdict in all other respects has been satisified by the Commonwealth.