Robert M. HUGHES and Doris M. Hughes, husband and wife, Appellees, v. COMMONWEALTH of Pennsylvania DEPARTMENT OF TRANSPORTATION, Appellant. Roy H. KINSINGER and Susie Kinsinger, husband and wife, Appellees, v. COMMONWEALTH of Pennsylvania DEPARTMENT OF TRANSPORTATION, Appellant. Marshall T. HETZ and Marvin L. Hetz, Appellees, v. COMMONWEALTH of Pennsylvania DEPARTMENT OF TRANSPORTATION, Appellant.
Nos. 79, 80 and 81 W.D. Appeal Docket 1985
Supreme Court of Pennsylvania
April 6, 1987
July 10, 1987
523 A.2d 747 | 514 Pa. 300
Argued Sept. 15, 1986. Reargument Denied July 10, 1987.
Nathaniel A. Barbera, Vincent J. Barbera, Somerset, for appellees.
Before NIX, C.J., and LARSEN, FLAHERTY, MCDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.
McDERMOTT, Justice.
The three matters listed herein were consolidated at trial due to a similar factual basis and an identical issue, being: whether section 611 of the Eminent Domain Code1 is unconstitutional. Since the trial court determined that the section was in contravention of constitutional mandate, we assumed jurisdiction pursuant to
The relevant facts of the respective cases are as follows.
No. 79 W.D. Appeal Docket 1985
On July 16, 1979, the Pennsylvania Department of Transportation (hereinafter PennDot) filed a declaration of taking, condemning the property of appellees Robert and Doris Hughes.3 Estimated just compensation was offered in writing on July 17, 1979.4 The property condemned was a
No. 80 W.D. Appeal Docket 1985
On October 17, 1979, PennDot filed a declaration of taking on a portion of Roy and Susie Kinsinger‘s dairy farm. Estimated just compensation was offered in writing on October 19, 1979. The condemned property was again prime farm land which the Kinsinger‘s made no use of after the condemnation, except to remove crops which were planted prior to the filing of the declaration of taking. As a result of the condemnation of their land, the Kinsinger‘s vacated the uncondemned portion of their farm on July 10, 1981, and thereafter sold it on September 30, 1981.
No. 81 W.D. Appeal Docket 1985
PennDot filed a declaration of taking on October 17, 1979. PennDot offered estimated just compensation in writing on July 17, 1979. The condemned property was a portion of farm land attached to the dairy farm of Marshall and Marvin Hetz. After the condemnation, the Hetzes reduced the taken farm land‘s use to an exercise field for their cattle, thereby effectively diminishing the overall size of their dairy farm operation.
The amounts offered by PennDot in the preceding three cases were $37,775 to the Hughes, $26,940 to the Kinsingers, and $60,875 to the Hetzes. After a hearing before the Board of Viewers PennDot appealed to the Court of Common Pleas of Somerset County wherein juries returned verdicts of $164,300 for the Hughes, $108,000 for the Kinsingers and $133,000 for the Hetzes. PennDot eventually paid the verdicts absent delay compensation. A non-jury trial was held resulting in a verdict of delay damages in
§ 1-611. Delay compensation
The condemnee shall not be entitled to compensation for delay in payment during the period he remains in possession after the condemnation, nor during such period shall a condemnor be entitled to rent or other charges for use and occupancy of the condemned property by the condemnee. Compensation for delay in payment shall, however, be paid at the rate of six per cent per annum from the date of relinquishment of possession of the condemned property by the condemnee, or if the condemnation is such that possession is not required to effectuate it, then delay compensation shall be paid from the date of condemnation: Provided, however, That no compensation for delay shall be payable with respect to funds paid on account, or by deposit in court, after the date of such payment or deposit. Compensation for delay shall not be included by the viewers or the court or jury on appeal as part of the award or verdict, but shall at the time of payment of the award or judgment be calculated as above and added thereto. There shall be no further or additional payment of interest on the award or verdict.
The learned and able trial judge held section 611 unconstitutional on the reason that if the uses of the land to the condemnee are diminished by the condemnation, notwithstanding the condemnee‘s possession, any formula or mandate of the Commonwealth that does not provide compensation for that diminished use is not just compensation and, therefore, unconstitutional under the United States and Pennsylvania Constitutions.5
Section 611 has an appealing simplicity, and if it provides for “just compensation“, a requirement written in stone and bronze in both the United States and Pennsylvania Constitutions, it is also constitutional.6
What is “just compensation” cannot be determined by the exclusive fiat of the General Assembly, for like all others they cannot be the judge in their own case. The determination of what is “just” between the Commonwealth and a condemnee is the function of the judiciary.
The right of the legislature of the State, by law, to apply the property of the citizen to the public use, and then to constitute itself the judge in its own case, to determine what is the ‘just compensation it ought to pay therefor, or how much benefit it has conferred upon the citizen by thus taking his property without his consent, or to extinguish any part of such ‘compensation’ by prospective conjectural advantage, or in any manner to interfere with the just powers and province of courts and juries in administering right and justice cannot for a moment be admitted or tolerated under our Constitution. If anything can be clear and undeniable, upon principles of natural justice or constitutional law, it seems that this must be so. Monongahela Navigation Co. v. United States, 148 U.S. 312, 327-28, 13 S.Ct. 622, 627, 37 L.Ed. 463 (1893) (quoting Isom v. Mississippi Cent. R. Co., 36 Miss. 300, 315 (1858). See also Miller v. United States, 620 F.2d 812 (1980). Nothing would seem clearer than that neither the condemn-
We must presume that an Act of the legislature is intended to be constitutional and wherever a legislative act can be preserved from unconstitutionality it must be preserved. When the validity of a statute is in issue we must refer to the Statutory Construction Act of 1972.7 That Act provides in relevant part:
§ 1921. Legislative intent controls
(a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.
(b) When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.
(c) When the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters:
(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be attained.
(5) The former law, if any, including other statutes upon the same or similar subjects.
(6) The consequences of particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of such statute.
§ 1922. Presumptions in ascertaining legislative intent
In ascertaining the intention of the General Assembly in the enactment of a statute the following presumptions, among others, may be used:
(3) That the General Assembly does not intend to violate the Constitution of the United States or of this Commonwealth.
§ 1928. Rule of strict and liberal construction.
(b) All provisions of a statute of the classes hereafter enumerated shall be strictly construed:
(4) Provisions conferring the power of eminent domain.
The question before us is, therefore, what did the legislature mean by “possession“. That meaning, to be constitutional, must comport with the concept of just compensation, otherwise it is an unacceptable, self-serving ukase of one party to a dispute.
Unless defined specifically within a particular act, words and phrases are to be construed according to their common and approved use.
Eminent domain statutes are strictly construed against the Commonwealth.
In that twilight of eminent domain, between present possession in the owner and the future right of possession by the Commonwealth, all the possible ordinary concomitants of possession repose in the actual potential of the land. If the land cannot be put to its ordinary use because of the condemnation, such a result, without adequate compensation, would be an unjust taking and a waste of the uses of land. It follows that when the condemnation deprives the landowner of the normal uses of the land, pending physical possession by the Commonwealth, compensation must also be intended.
Therefore, we hold that where a declaration of taking deprives a landowner of the full and normal use of his property, as established by the use to which his property was devoted prior to the declaration, then that landowner shall no longer be considered “in possession” within the meaning of section 611, and the condemnee may claim delay damages from the date of the declaration of taking. Thus, we conclude that section 611, when so construed, does pass constitutional muster in determining when delay damages go into effect.
Turning to the case at bar, the facts established that the properties condemned were all portions of prime farm land used by the owners for the raising of crops.8 In each instance, after condemnation, PennDot refused to give the condemnees an estimated date on which it would take physical possession; nor would it give guarantees that it would accommodate the farmers’ planting schedules. This refusal forced the condemnees to cease all farming operations on the condemned portions of their farms for fear that they would lose the invested planting once PennDot as-
There remains the question of whether in accordance with “just compensation” the General Assembly may fix the rate of interest applicable to delay damages. The principles are the same. The General Assembly cannot by legislation determine what is just compensation. In Section 611 they fixed the interest rate for delay damages at six percent per annum. In Miller v. United States, supra, the court summed up the basic legal principle for the rate of interest.
The award of less than a fair rate of interest to [condemnees] must be viewed as an impermissible interference with the exercise of their right to a judicial determination of the amount of just compensation.
In United States v. Blankinship, 543 F.2d 1272 (9th Cir.1976), the court addressed the issue of whether the six percent rate of interest as established in
The court in Blankinship concluded that since the final interest rate is a factual issue to be determined by the trier thereof, the proper mode of measurement is:
[T]he rate of interest that would have been available to the person from whom the property has been taken had he, at the date of taking, invested the total amount of any
deficiency in the original deposit in a marketable public debt security issued by the United States Treasury having a duration commencing with the date of taking and ending with the deposit in the registry of the court of the entire deficiency with proper interest.
Blankinship, supra at 1274. Moreover, the court emphasized that its method of calculation was not intended to condemn other courts who choose the calculation of a local rate of interest given the circumstances of the cases before them. Id. at 1277.10
Other states have likewise followed the federal lead in holding that “[i]f the property owner produces evidence that the six percent rate is constitutionally insufficient, he should be entitled to a higher rate of return as part of just compensation.” King v. State Roads Commission of the State Highway Administration, 298 Md. 80, 91, 467 A.2d 1032, 1038 (1983). See also Matter of City of New York, 58 N.Y.2d 532, 462 N.Y.S.2d 619, 449 N.E.2d 399 (1983) (upheld lower court‘s determination that nine percent was a fair rate for the period of 1978-1981.)
In holding the mandatory six percent rate of section 611 unconstitutional, Judge Coffroth considered the rate of interest for commercial loans (over $2,000.00) during the period of detention (July, 1979 through July, 1984). There was also additional expert testimony on assorted bank and money market investments available during the period in question. The court ultimately determined that the landowners were entitled to delay compensation at the commer-
The record in this case clearly demonstrates that the six percent interest rate mandated by Section 611 of the Code would not have provided just compensation to the condemnees. Therefore, the trial court acted appropriately in refusing to impose that rate, and choosing instead the prevailing commercial loan rate. See Whitcomb v. Philadelphia, 264 Pa. 277, 107 A. 765 (1919).
However, PennDot‘s contention that the trial court erred in assessing simple interest on the unpaid delay compensation has merit. It is well settled that the striking of one part of a statute, does not necessarily invalidate the remainder.
Therefore, the order of the Court of Common Pleas of Somerset County is reversed in part and affirmed in part and this case is remanded to that court for disposition consistent with this opinion.
HUTCHINSON, J., files a concurring and dissenting opinion.
NIX, Chief Justice, concurring and dissenting.
I agree with the judgment of the majority that section 611 of the Eminent Domain Code, Act of June 22, 1964, Sp.Sess., P.L. 84, Art. VI, § 611,
ZAPPALA, J., joins in this concurring and dissenting opinion.
HUTCHINSON, Justice, concurring and dissenting.
I agree with the majority that a landowner should no longer be considered in possession of his property when he has been fully deprived of the normal use of that property as a result of a declaration of taking. In such cases the condemnee may claim delay damages under Section 611 of the Eminent Domain Code.
I must disagree, however, with the majority‘s conclusion that the General Assembly has unconstitutionally fixed the rate of interest at which these damages will be paid. Legislative action always carries a strong presumption of constitutional validity. Pennsylvania Federation of Teachers v. School District of Philadelphia, 506 Pa. 196, 484 A.2d 751 (1984); Martin v. Unemployment Compensation Board of Review, 502 Pa. 282, 466 A.2d 107 (1983), cert. denied, 466 U.S. 952, 104 S.Ct. 2156, 80 L.Ed.2d 541 (1984). Thus, we should not hold a legislative enactment unconstitutional
When a property owner has been fully deprived of the normal use of his land by an entity clothed with the power of eminent domain, our federal and state constitutions mandate the payment of just compensation.
Even if the record in this case showed a deprivation of just compensation sufficient to overcome the presumption of constitutionality, I would be compelled to note my dis-
I recognize that we approved the use of commercial rates to measure the cost of delay on the record in Whitcomb v. Philadelphia, 264 Pa. 277, 107 A. 765 (1919), a condemnation case arising before adoption of the 1964 Eminent Domain Code. However, in that Code our General Assembly has provided several alternate mechanisms for compensating condemnees for transitional costs incurred. See
I dissent and would uphold as constitutional payment of delay compensation at the rate of six percent, as set forth in Section 611. Accordingly, I would modify the order of the Court of Common Pleas of Somerset County, by vacating that part which awarded delay compensation to appellees at prevailing commercial loan rates, and would fix the rate at six percent in accordance with the statute.