*1 C.J., Before CAPPY, ZAPPALA
CASTILLE, NIGRO, NEWMAN, EAKIN,
SAYLOR and JJ.
ORDER
PER CURIAM. NOW,
AND day this 17th of June
we GRANT the Commonwealth’s “Motion
for Remand to Superior Court for Consid-
eration Appeal Merits, None of Implicate
Which the Constitutionality of 18
Pa.C.S. 6317.”
As possess jurisdiction we do not pursu- 722(7),
ant to 42 hereby Pa.C.S. we
TRANSFER this case to Superior
Court. See Pa.R.A.P. safety Thus, important was the most rendering factor for me.” the street.” Id. its deci- N.T., 3/10/98, at 264. He today, opinion also testified that sion the lead fails address only thing prevented “[t]he me testimony upon [from which the trial court re- staying with the granting Appellants' vehicle while a search war- suppression lied in mo- my rant was fear upon Superior obtained] that someone tion and which the Court be- gun, would wander on laying significant portion if it was opinion. low based a of its *2 Pennsylvania, Department Transpor (the “Department”),
tation declara filed partial taking tion of owned by the Dennis In this Appellee, Sluciak. *3 appeal, upon we are called decide two to 406(a) (1) questions: whether Section Code, 1-406(a), required Ap 26 P.S. objections pellee preliminary to raise claim land that condemnation locked and dimin remaining property his virtually ished its fair market value to zero; (2) whether Section Code, l-602(a), the ad allowed mission of February later a neighboring piece property, Appellee legal served to insure that had remaining access to his property, of damages. issue We that under conclude Code, Appellee required was not to file objections preliminary and that evidence of Department’s subsequent taking was determining admissible compensation which Appellee was enti Thus, tled. all of following for rea sons, we affirm the order of the Common wealth Court.
In April Appellee’s parents, Jo- Sluciak, seph purchased sixty- and Helen a parcel Township. land in acre Cecil Cameron, Walter Pittsburgh, F. for later, and Mary months Rudolph Several Dept, of Transp., appellant. Dagsher adjoining parcel. purchased pieces Both on Boyer, fronted Grude- W. Patrick Washington, Den- Road, running rough- road Sluciak, township nis vich a appellee. though ly Even northwest/southeast. FLAHERTY, C.J., Before Grudevieh frontage their on CAPPY, CASTILLE, ZAPPALA, NIGRO Road, thorough- accessed Sluciaks SAYLOR, JJ. driveway fare that crossed a using OPINION approximately feet sliver land twelve long by corner of twenty feet wide at the Justice CAPPY.* (the Dagher’s “Driveway”). In April pursuant power granted 1970s, Appellee of condemnation in the Eminent established (the family’s Domain et seq. landscaping prop- 1-101 business his “Code”), erty, Appellant, the Commonwealth where he also continued reside. * opinion reassigned This was to this author. mid-1980s, condemnation was Sluciak subdivid- $500,000,
In the Helen deeding one 44.624-acre that the value property, $15,000. ed was opinion portion appraiser’s was Appellee, other based on portion business, understanding Appellee’s locat- Appellee’s to his brother. given, ex- was landlocked. portion Asserting he was ed on business, he could not relocate his operations, Appel- to include excavation panded storage lee that the repair contended assembled shop, and consisted of a economic areas, applied.2 Appellee’s expert con- unit doctrine Appellee a barn and trailers. from also total traveling opined to and Grudevieh tinued than 3 dollars. Driveway. greater were million Road over connecting ramp provide To for State acknowledged *4 Although Department the (Interstate) 79 and State Route Route that have been mistaken believ- it 1082, Department filed a declaration of the ing Appellee’s property borders that 1993, April acquiring 12.190 taking on vicinity of the Road the Grudevieh the Appellee’s property, including acres of Driveway, it contended that facts Road, leaving a frontage on Grudevieh Appellee’s remaining property showed that Appellee received residue 32.324 acres. Appellee had was not landlocked because condemnation, and copies notice of the via the Drive- access to Grudevieh Road taking and property the declaration of Department also offered evi- way. The objec- plat. preliminary He did not file just prove to the estimated dence $460,000 Valuing tions. at paid it had compensation Appellee to was $315,000 at after taking prior question damages, On sufficient. taking, paid Appellee Department permitted, Ap- was over $145,314 just compensation as estimated testimony re- objection, present to pellee’s 23,1993. May on “cure” the efforts was lating to Appellee’s access to his “defect” Appellee peti On October ¶ (Viewers’ Report at R. property. appointment of a board of view tioned 45a). “Board”). (the hearing, At the Board’s ers Appellee’s found that taking, The Board that before the Appellee testified not border Road. does Grudevieh frontage had 800 feet he linear Appellee also found that Road, taking, Board but that Grudevieh had al- in interest predecessors and his had none. He also testified that he Driveway to travel own, ways his used the Driveway, did not which he Road, Appellee and that from Grudevieh Appellee access Road. to Grudevieh Accordingly, to do so. therefore, continued argued, “has an Appellee An concluded remaining property.1 Board “landlocked” his Mary Dagsher license to the testi irrevocable Appellee’s behalf appraiser called on by necessity.” or an easement prior access road that the land fied Dictionary, doctrine, it wheth- is determined According Law Under to Black’s equipment machinery, and fixtures consti- er "[(landlocked” expression applied to is "[a]n and, unit part of an assembled economic tute belonging person to one piece land therefore, realty. part of are the condemned belonging per- by land to other surrounded so, compen- If a condemnee entitled sons, approached except so that it cannot be taking. Redevelop- Singer v. their sation for Dictionary 878 Law over their land.” Black’s City, Oil Auth. ment ed.1990). (6th (1970). A.2d 594 (Viewers’ 47a). ¶22.3, Report at R. question by failure to way raise Board Appellee also found that preliminary objections. continued The trial court de- operate his In light business. nied the motion. foregoing, rejected the Board application court, Before the trial parties both sub- doctrine, assembled economic unit proof mitted regarding property bound- accepted appraisal of aries Driveway’s location and use. $145,000, damages at spe- awarded as Appellee offered evidence to show that his damages any cial future costs and fees “to remaining property did not front Grude- (Viewers’ cure the technical defect.” Re- vich Road. As to Driveway, Appellee ¶ 22.7, 48a). port at R. testified about the several unsuccessful at- Appellee filed an appeal from the tempts that he or his father had made to Board’s award in the court of common purchase with the Driveway pleas, alleging that the Board erred in on it from Dagshers. He also testified determining what the value of his that he removed Driveway snow from the was before and taking; after the in assess- in the winter and added slag stone and ing $145,000; in finding it from time to time. Dagsher’s Mrs. son- that he had an irrevocable license or an in-law testified that although Appellee and *5 by easement necessity over Driveway; the family his never acquired the land beneath and in rejecting application of the assem- Driveway the or an easement or a right-of- bled economic unit doctrine. way, it was his understanding that Appel- permission lee had to cross the Dagshers’
Pursuant to Section 517 of the 26 property. Appellee’s mother testified as 1-517,3 Appellee filed a motion with family’s her and continued use of the the trial February 27, 1995, court on as- Driveway years. over the serting that access to his property was a question decide, for the court to and ask- appraisers One of the Department the ing for a preliminary determination of the had retained testified that ap- he did not Initially, matter. the court denied the mo- praise Appellee’s remaining property tion, upon but the Department’s request, as Appellee’s landlocked because of contin- reconsidered, and decided to hold a hear- ued Driveway use to and from ing purposes for of determining whether Grudevich Road. Department When the Appellee’s remaining property was land- attempted to elicit testimony from the De- locked. partment’s Right-of-Way Administrator about Department’s February 1997,
In February of Department Dagshers’ condemnation of the sliver of condemned the land upon which the Drive- land Driveway, which included the way Appel- is constructed in order to confirm objected lee that such evidence was inad- Appellee’s right to use it. missible. trial The court sustained the 14, April On April the trial objection. hearing court held a to determine whether Appellee’s remaining property was land- Despite having Appellee’s sustained locked. At the hearing, Department objection as to of the Depart- evidence made an oral motion to dismiss Appellee’s subsequent ment’s condemnation of the appeal from land, the Board’s determination Dagshers’ for in an order April dated provides pertinent part Section 517 preliminarily.” that mined the court objections, other than the “[a]ll amount of the § 1-517. award, appeal raised shall be deter- relating to Appellee’s ruled of evidence actions the trial court that admission Department February took in
property “is
landlocked as
Com-
focusing
“[b]y
The court
on
stated:
Pennsylvania
monwealth
has cured
(Trial
88a).
condemnation,
subsequent
the trial court
Order,
access issue.”
Court
R.
on
erroneously based its decision
on
state that “from 1938
court went
purpose
for the
of after
properly excluded
has
present
family
date the Sluciak
Tacitly
at
The Commonwealth Sections however, the holding the intent of General the trial court’s effectuate 1921(a); Assembly. § 1 Frontini Appellee’s was not Pa.C.S. remaining acreage Transp., 527 Dep’t landlocked because the v. Commonwealth 448, (1991). 410, A.2d 411-12 Appellee’s insured access to Grudevich Pa. 593 regard, language the the General As- subsequent Road its condemnation sembly in the 1 Driveway. prior deci used statutes controls. Relying its 1921(a)-(b); § Philadelphia Electric Pa.C.S.A. Appeal sion Co., 100, 384, 887, Pope, Pa. A.2d 889 A.2d 424 v. 455 317 135 Pa.Cmwlth. 580 (1974). denied, 615, (1990), Pa. A court must effect to the give alloc. 528 596 A.2d (1991), meaning unambiguous held that Section obvious clear and 161 court 602(a) statutory language, language does allow the and such Code Comm’n, 219, case, Tpk. 547 689 to deter- nia Pa. A.2d In this our review limited (1997). proper dis- As the of the mining court 222 construction whether the trial abused law, pure question implicates or Code our of law cretion or committed error supported by plenary. Phillips v. A-Best findings review is Co., Products whether the of fact are (1995). Pennsylva- 665 A.2d 1170 evidence. Denes v. substantial
731 disregarded cannot be pretext under the proper characterization of ques pursuing the spirit. statute’s tion that Appellee’s landlocking Pa.C.S. claim rais 1921(c). The words phrases parties’ of a es lies at the heart of the dispute 406(a)’s statute are construed Section according to their over dictates. On the one hand, common and approved usage. Department argues Appel Pa.C.S. Lastly, challenged lee’s claim the “scope” the Act of both specifically provisions taking states that all declaration of conferring the itself; power essentially it eminent domain asserted de strictly must be facto condemnation of 1928(b); proper construed. entire Pa.C.S. Butler ty; objected Fair to the inclusion Agric. & Ass’n v. School Dist. of Driveway on property plat Butler 389 Pa. contained 132 A.2d (1957). taking; declaration of and it ques
tioned Department’s “right” to appro priate portrayed. We turn Department’s (Appel first 14; lant’s Brief at argument Appellant’s that Appellee Reply violated Brief the dic 1-2). 406(a) hand, Appellee tates of On the other as by failing to file serts that he did not pursue theory of a preliminary objections raising the claim de total challenge nor that the condemnation landlocked his re facto Department’s authority, procedures, or the maining property. Section provides Instead, declaration of taking. his claim part: relevant “value”, “[just] related to compensa Preliminary objections shall be limited tion” to which he is entitled for “im to and shall be the exclusive method of pact” condemnation had (1) challenging power right or on the remaining portion of property. condemnor appropriate the con- not, therefore, The claim was an appropri demned unless the same has subject ate preliminary objections. (2) previously adjudicated; been the suf- 4). (Appellee’sBrief at (3) ficiency of security; any other In support position, of its the Depart- procedure condemnor; followed ment relies on the Commonwealth Court’s (4) the declaration of taking. Failure Whiteland, opinion in West urges us to to raise these matters preliminary *7 Whiteland, follow it. In West the Depart- objections shall constitute a waiver ment filed a taking declaration of in June thereof. of 1989 that included a plot plan prop- 1-406(a). erty plat showing property consisting of 71.526 acres before condemnation and The Commonwealth Court has re 23.866 acres taking. after the The con- stated, peatedly agree, and we “[pre that demnee did preliminary objections. not file liminary objections under Section 406 of later, years Almost four the condemnee the Code are procedure intended as a petitioned appointment for the of a board expeditiously resolve all legal and factual viewers, requested additional com- challenges to the of taking declaration be pensation allegation based on the that his parties fore the move to the second dis property the taking actually before con- proceeding tinct of qualifying damages.” sisted of 179 acres. See, e.g., West Whiteland Associates v. Commonwealth, Dep’t of Transp., 690 Department argued A.2d The that because 1266, 1268(Pa.Cmwlth.1997), denied, alloc. preliminary the condemnee failed to file (1997). 705 objections 406(a), A.2d 1313 pursuant to Section he 406(a) designates claim. must be raised right to raise his
had waived the objections. by preliminary agreed. Court The Commonwealth first in accordance court observed in Mat precept This same evident and 405 of the with Sections 402 Huntingdon Township, North ter Pa. 405(c)(8), respectively, §§ (1978). 387 A.2d 1— Cmwlth. included in the declara- Department had case, filed a the condemnor declaration description property taking tion of a right-of-way for a or easement. place to the condemned and a reference file ob preliminary The condemnees did showing alia, condemned asserting, inter that the dec plans jections, where in- could be stated incorrectly were recorded and laration property the de acquired nature of the title condemnee a spected, and had sent the Ac scription property condemned. plan showing property his entire plot condemnees, under cording to the area The court then concluded taken. easement, ef condemning guise sought to the issue the condemnee was to fect of the condemnor’s action take contest, i.e., en- “the size Condemnee’s it value by rendering of their property all related “information that property”, tire affirmed Court less. in the of tak- must be included declaration dismissing preliminary the order below condemnation,” and was ing notice of objection. explained: “[t]he The court basic to case that it had so seeking judicial determi are condemnees possible stage decided the earliest their property nation of the Id. at filing preliminary objections. for the sew condemnation of easement judicial function. The line. is not a er This contrast, case, by In this difference entitled to the condemnees are challenge Department’s did claim proper fair market value of their between description entire or the property of his condemnation, both ty before and after description property Department’s jury they are to be fixed values Moreover, not, it did as the De- taken. judicial declaration that not entitled to a object argues, to the partment has no value after the their of tak- incorporated in the declaration plat further stat Id. at The court take.” authori- object ing prelimi of a a case ... “[t]his ed: is not Indeed, Appellee ty as reflected therein. taking; facto nary objection raising de objections. make had no reason to such to describe have failed the condemnees Appellee’s perspective, plat ac- From their anything done to understanding his curately reflected than has condemned condemnor other following taking, proper would destroyed an easement which no on Grudevich Id. frontage ty’s have value.” *8 Road; Driveway connected his that Appellee’s we hold that Accordingly, thoroughfare; land to that and claim, to the value of his which related Dagshers’ Driveway property. on the by as the tak- remaining affected property be, to nor could it required not ing, was Rather, find, asserts, as Appellee we been, objec- by preliminary raised have to value of his went his claim 406(a). tions under Section after condemna- remaining property Next, under tion, dimin- determine whether a that he contended was we value De 602(a), regarding legal to a lack of access to Section ished due Driveway on the taking of partment’s This is a matter that Road. Grudevich
733 immediately Dagshers’ February in of interest before the condem- property years Ap four after condemnation of thereby and nation and as unaffected 23, 1993, pellee’s April is admissi land of the fair market value ble. immediately remaining after interest affected condemnation and as such
Section 602 sets forth the Code’s “Mea other are damages”, “just thereby, damages sure of and and such governs the compensation” condemnee is awarded provided this code. § 1- proceedings.
eminent 26 P.S. domain 1-602(a). § 26 P.S. 602(a). Township Chester Common wealth, 369, 433 Dep’t. of Transp., 495 Pa. gist Department’s argument The (1981), A.2d 1355 we stated that an appeal interpretation in this is that principle underlying fundamental “[t]he Section which serves to exclude evi- requirement ‘just compensation’ is taking dence 1997 indemnity: one of a condemnee is entitled Driveway is erroneous because is good to in as placed position pecuniar- be “temporal”. (Appel- unduly and “narrow” ily ifas his had not been taken.” 18). According lant’s Brief at to De- end, princi
To that a common law Frontage partment, under our decision ple just developed compensa calculate County, Allegheny Inc. v. 162 fairly predictably. principle This 602(a)’s (1960), “principle A.2d Section is referred as the commonly “before and so taking [not] valuation date is rule”, provides just after compen ignore as to all circumstances inflexible sation consists the difference between taking”, occurring pre- after a the fair market value of condemnee’s “speculative the introduction of tes- cludes property immediately before the timony designed improperly reduce thereby, and as unaffected and the fair on circumstances that compensation based market his exist at time of trial and do not after immediately appropriation 18). (Appellant’s never occur.” Brief taking. Pennsylvania affected Gas complains further & v. Pennsylvania Turnpike Water Co. holding Court’s is un- the Commonwealth Comm. Pa. 236 A.2d fair, penalizes remedying and that it it for (1967). prior the unintended effects Assembly specifically General incor- impact and affords a windfall to the their porated the “before and after rule” into 21-23). (Appellant’s Brief at Appellee. l-602(a), Section 26 Pa.C.S. counter-argument straight- State Comment—Joint Government Com- l-602(a) Report.5 plain meaning mission Given Section forward. Assembly states: with which the General words 602(a), intent expressed 1-602. Measure of remaining property “immedi- (a) value of Compensation shall consist Just taking cannot deter- ately after” the the fair difference between market took value of entire mined reference to event which the condemnee’s rule’, 1-602(a) adopting Comment the 'before The 1964 *9 firmly in the law. Brown states that section sets forth what dam is Commonwealth, entrenched "[t]his 881] A.2d ages [159 the entitled to when his condemnee is (1960)....” paragraph State Govern is condemned. The first Comment—Joint Report. existing of this section codifies the case law ment Commission § 1- place years four thereafter. 26 P.S. court allowed counsel for the condemnor con- a for the to cross-examine witness demnee about the Commonwealth’s guiding principles statutory on of Based the regard to unexecuted intentions with construction, agree Appellee. we with In from Airport Parkway, to and obtain view, our the in emi damages measure of him an admission that without access 602(a), nent domain cases under Section road, that had a remaining the which is framed in terms of a limited win half much fair market value of time, dow have of could not been stated previ- as the amount he had more It that com precisely. provides ously testified. pensation is the in fair difference relevant “immediately market values and before” in that the court Finding trial erred “immediately a condemnation. 26 after” allowing questioning, such we reversed the 1-602(a) added). (emphasis The judgment granted the condemnee a “im Assembly’s General of use the word holding new trial. was based on the Our 602(a) mediately” literally in Section allows in requirement the after rule” “before for lapse taking no between the the domain cases be eminent point at which a condemnee’s taking. date stated: assessed at the of We then, Clearly light property is valued.6 condemnor], brief, in its [The has statute, of the plain meaning the the strenuously contended this line of Department’s position is unsustainable. relevant ‘It obvi- inquiry was because is Likewise, the Department’s contention plaintiff [appellant], ous that the before Frontage our decision stands Board Viewers before proposition pre- that Section jury, predicated theory its whole of dam- only the cludes admission of evidence ages in case free to the this on access relating specu- are circumstances that Airport parkway.’ might And well —ii Frontage, lative is meritless.7 had such access date condemnor condemned certain Parkway .... That the has not pur- owned condemnee for limited highway been declared access pose constructing terminal facilities at day strongest is indication Pittsburgh Airport. Greater that statements officials do not public Airport frontage Moreover, always bear fruition. Thereafter, Parkway. of- of the of emi- principle fundamental law they ficials indicated that intended to nent market is de- domain Airport Parkway declare limited upon taking. termined date highway, access which would have elimi- 4 (emphasis original). Id. at We also Airport Parkway nated access to the question the hypothetical observed that property. from the condemnee’s At the propounded upon date and at witness based the date trial, Parkway mis- Airport highly had not been nonexisent state facts Nevertheless, trial, designated. leading, confusing speculative Dictionary dictionary "immediately” as House 6. defines fol- as soon as.” The Random (2nd ed.1987). time; English Language lapse "1. without without de- lows: object lay; instantly; .... 2. at once with no Frontage prior arose and was decided intervening. closely space or .... 4. with- were, therefore, passage the Code. We con- intervening agent; concerning out medium or sidering “before and after rule” as devel- that; affecting directly_5. the moment oped in case law. *10 not, condemnation, however, including Id. at jury. 4-5. did as tract before the We Department interpret thereon, the suggests, buildings the all the the situated and after as disallowing “before rule” no value of tract after the con- than more the introduction at trial of mere demnation, multiple dwelling including In possibilities. Frontage, we held that had the condemnees relocated. the condemnor’s evidence was inadmissible a written Commonwealth submitted offer rule” under “before and after because values, of proof of such which the trial relevant, not it was not because it was jury court refused. The was instructed speculative. See id. at 5-6. multiple dwelling instead that to was fixing in
This is not the
time we
be considered
the value of the
first
have been
expand
condemnation,
invited to
traditional applica
prior
land
but
to
to the
was
rule”,
of “before
currently
and after
excluded from
its consideration
de-
embodied
In Dyer
termining
of the remaining
the value
un-
Commonwealth,
In the Commonwealth condemned thereon, improvements to all the includ- 3.97 acres of the condemnees’ 20.3 acre ing multiple dwelling. Upon tract. One improvements “taking” owner-appellees acquired portion condemned appellees’ tract was right compensated to be for the multiple dwelling. Subsequent land, taking, difference in the value of their the condemnees relocated the thereon, dwelling including improvements im- portion to a land of their that was mediately immediately not condemned. parties before contested the damages, “taking”; right amount of such eventually compensa- went pretrial conference, subject qualification by to trial. At a tion was not asserted the fact that the time of measure between should be the difference be- time of actual construction of the value of multiple tween the entire 20.3 acre highway dwelling Dyer prior also arose and was decided ment—Joint State Commission Government passage Again, l-602(a) we the Code. were Report § consider- explicitly ing the developed “before and after rule” as l-602(a) § states that 26 P.S. embodies the law. in case “before and after rule” the courts in Penn- sylvania developed applied it before the regard, part we and dissent Moreover, supra Code’s enactment. See n. 5. ways. The dissent contends that certain sec- support prop- we can find no for the dissent’s in the tions like 26 P.S. 1-705 or 1- legislature osition that the meant liberalize law, change indicate in the such that or relax “before the traditional and after understanding the traditional "before rule” with its enactment of 26 P.S. 1- Dyer after rule” as articulated is no 705(2)(v) any Code section. other longer controlling. disagree. We The Com- *11 736 “taking” ple dwelling on after the resulted removed to another location the
been Commonwealth, land. To in a portion uncondemned their loss well- ignore remedy recoup otherwise would be to has its hold Commonwealth to hand, in emi- recognized established rules permit such On other to loss. proceedings recoupment domain and would add nent establishment in already complicated field confusion in this condemnation proceed- such loss of the law. contrary ing be not to our would “before” salutary and well-established (footnote (emphasis original) Id. at 762 in productive be and “after” rule but would omitted). unworkable mea- impractical of an response In to the Commonwealth’s damages. sure circumstances, complaint that under countervailing collateral mat- “Proofs of essentially application of rule was un- the introduction of collat- ter will follow fair, forcing pay to an excessive amount matter; on eral issue confusion in damages pointed to we out appellees, confounded; liti- trial will worse consider the Commonwealth should by land gation taken over pursuing alternative remedies: truly condemnation will become intermi- that, argues The Commonwealth nable.” rule, application of this it is forced to dwelling pay multiple the value of the as Berger v. Public (quoting Id. at 763 & n. in such value is reflected the “before” 109 A.2d Parking Auth. 380 Pa. and at permit (1954)(Jones, J., the same time dissenting)). owner-appellees multiple retain to Next, Department’s we address Commonwealth, dwelling itself. The prohibits evi ruling assertion that a which however, in remedy does not lack a this subsequent condemnation dence its owner-appellees are sub- situation. The condem Dagshers’ property “deprives ject to an in trespass action fairness that nors of same fundamental dwelling, title to which removal condemnees” because con granted to acquired had been the Common- present allowed to evi demnees have been Furthermore, if, the owner- wealth. outlays cure expended dence of contend, appellees the Commonwealth remaining taking on impact partial of a building— agreed removal 21). (Appellant’s Brief property. denied the Commonwealth'—the Department support argument, would have an action for 705(2)(v) points Section fair value thereof. 1-705(2)(v), governs the evi which Id. at 762-63. expert may qualified that a valuation dence our hold- then concluded under
We
in
hearing
viewers or
before
present at
ing,
705(2)(v)
parties
the interest of both
provides
the trial
court.
served, and discussed the adverse conse-
expert may
valuation
qualified
“[a]
do-
quences that
follow in eminent
would
testify
or cross-examination
on direct
main
if the “before and
proceedings
the valuation of
detail
conclusion,
ignored.
value,”
Our
rule” were
in
comparable
market
case,
repeating:
we
bears
embrace
testimony
adjust
cost of
“[t]he
clude
any
ments and alterations
expressed,
the views herein
Under
necessary or reasonable re
made
interest of both the Commonwealth
by the condemnation.” 26 P.S.
fully
quired
If
protected.
the landowners are
l-705(2)(v).
case, however,
in-
This
this multi-
removing
action
appellees’
Thus,
602(a),
proper
volves the
construction of Section
we hold
under Section
To the extent that the
evidence of the
condemna-
*12
602(a)
Driveway
believes that Section
Dagshers’
treats condem-
of
nors
in
unfairly
light
evidentiary
February
in
of 1997 is inadmissi-
705(2)(v),
in
provisions
Appellee’s damages.
set forth
ble on the issue of
should take up this matter
At the time of the condemnation
Pennsylvania’s Legislature.
with
We can-
23, 1993,
Appellee’s
April
of
land on
how
602(a)
not rewrite Section
to suit the De-
ever,
the substantial
evidence of record
partment’s notions of fairness.10
Appellee
using
reveals that
and main
taining
Driveway,
as he had used and
Turning last
to the Department’s
years,
maintained it for a number of
concern that without consideration of the
that he continued to use and maintain the
condemnation,
subsequent
Appellee may
Driveway
taking.
after the
cir
Under the
unjustly
enriched because
Depart
cumstances, Appellee may have had before
mitigated
ment
the impact of the condem
after
time
legal
a
and/or
prior
any
nation
termination of Appel
Driveway,
interest
the existence of
lee’s
access Grudevich Road and a final
may
which
have relevance to
damages,
determination of
the principle
landlocking claim as to
remaining prop
his
guides
quite
us is
clear. Even assum
erty,
just compen
and to the calculation of
ing that
concern has
sation.
merit, we
disregard
cannot
the plain mean
ing of Section
Accordingly,
this one case in
we affirm the order of the
1 See Pa.C.S. Commonwealth
order to
spirit.
Court,
advance its
which reversed the
1921(c).
§
trial court and remanded this case to the
We,
dissent,
unlike the
do not believe that
The cases we have reviewed reveal that the
Department sought
the evidence the
to intro
evidence which has been admitted on fair
duce constitutes
adjustment
"[t]he cost of
pursuant
principle
market value
articu
any remaining property
alteration to
made
1-705(2)(v)
§
lated in Puloka or under 26 P.S.
necessary
reasonably required by
or
the con
is evidence of the cost of restorative measures
meaning
demnation” within the
of that sec
typically
by
undertaken
the condemnee to
tion. As stated in the Comment—Joint State
correct a condition that the condemnation of
Report,
Government Commission 1964
portion
property imposed
a
of his
1-705(2)(v)
principle
covers a
which
See,
e.g.,
he continued to own.
West
applied
the courts
before the Code’s enact
(costs
inghouse,
filling
trial court for determination of those 1-602. Measure matters. (a) shall compensation Just consist the difference between the market fair participate Justice NEWMAN did not proper- condemnee’s entire this case. the consideration or decision of ty immediately con- interest before the Former Chief Justice FLAHERTY did thereby and as demnation unaffected decision participate case. proper- market value of his fair ty remaining immediately interest *13 Chief ZARPALA files a Justice such condemnation and as affected opinion in which Justice dissenting and such other as thereby, are joins. CASTILLE provided in this code. ZARPALA, dissenting. Chief Justice 602(a) added). § (emphasis 26 P.S. In 1 - Condemnee, agree I Sluc- Dennis analysis, applying this courts must make iak, required to file preliminary fair two assessments of the market value objections of declaration filed of a interest: one property condemnee’s Condemnor, by the Commonwealth of immediately immediately and one before Pennsylvania, Department of Transporta- taking. after the tion, pursuant the Emi- Section of Code,1 nent Domain hereinafter “the demands that While the Code courts Yet, that, agree I under Code.” cannot market mo- assess fair two exact Code, time, Section simultaneously recognizes ments in Department’s February 1997 condemna- fair value itself could be market driveway tion that runs across Ru- by affected considerations that occur later dolph Dagsher’s property, and Marian proper To consider- clarify time. is driveway,” hereinafter “the inadmissible ations in the fair market value calculating determining interest, the fair market value of of a Sec- property condemnee’s remaining property. Condemnee’s “fair tion 603 of the Code defines market value” as: Code Section 601 states that just “[t]he condemnee shall be entitled § Fair market value 1-603. taking, compensation injury for the or de- price Fair be the market value shall property, determined struction of as agreed by willing which would be in this 1-601 set forth article.”2 buyer, taking and and informed seller added). (emphasis To determine the to, consideration, into but not limited just amount to which a compensation factors: following entitled, we look to condemnee Section (1) provides, perti- present use of the and The its such part: nent value for use. X, ("Munici- secured.”) Sp.Sess., Act and Section 4 1. of June P.L. arts. Article IX, amended, §§ I to 26 P.S. 1-101 to 1- pal corporations as with the and other invested public privilege private just compensation for use make shall Pennsylvania, right condemnee's taken, by destroyed construc- injured or compensation Pennsylvania from the derives works, enlargement highways their or Constitution, I, (“[N]or Article Section 10 compensation improvements or shall be applied private property shall be taken or paid taking, injury or or secured before use, authority public without law with- destruction.”). just compensation being out first made or
(2) highest reasonably best available use of the (v) altera- adjustments The cost value for such use. any remaining property tions to made necessary reasonably required (3) machinery, equipment and fix- condemnation. forming part tures of the real estate 1-705(2)(v) added) (ir (emphasis taken. 26 P.S. omitted). portions relevant (Jp)Other as to which evidence factors Adjustments and alterations to a con- provided by he Article offered remaining property, demnee’s admissi- VII. 705(2)(v), ble under Section are their added). (emphasis Thus, 1-603 very implemented condemna- nature after fair market value all subsumes of the fac- usually completion tion and tors within Section as well as addition- Likewise, public work. the costs of these permitted al evidence under Article VII. expended “cures” are not until after the VII, Article as invoked *14 Nonetheless, taking. the Code mandates contains the evidentiary Code’s rules for post-condemnation consideration of these eminent domain proceedings. See 26 P.S. in determining factors fair market value. §§ 1-701 to 1-706. Section 702 allows Thus, permits Section 705 evidence of fu- condemnors “present expert testimony ture that may properly curative measures of the amount of damages suffered affect the fair market value as assessed § condemnee.” 26 P.S. 1-702. Concur- immediately immediately before or after rently, liberally Section 705 of the Code taking.3 Indeed, the Comment to Sec- outlines the extent expert of such testimo- 705(2)(v) “ftjhese reaffirms that mat- ny: ters, in keeping with liberalization of § generally 1-705. Evidence expert, examination should hearing Whether at the before the view- properly they be considered since affect ers, or at in the trial court on appeal: market value.” fair Here, Condemnor maintained Con- (2) A qualified expert valuation may uninterrupted tes- demnee’s access to the driveway.4 tify on direct or in property by condemning cross-examination detail as to the valuation of the property implemented While Condemnor this cura- ..., testimony which may already include but tive measure after it had con- shall not following: be limited to the frontage along demned Condemnee’s Legislature’s approach neighbor 3. The liberal between condition of admissibility of future considerations in deter hood at the time of condemnation and at the mining apparent through fair market value is view). (2)(i) Unlike Subsections time of generally § out the Code. See 26 P.S. 1- (2)(ii) (2)(v) does of Section Subsection 705(2)(i) (permitting evidence of condemned not entail a "reasonable time” element. property's price, sale sale was made if within time reasonable tion); before or condemna suggests that 4. Section 617.1 of the Code con- 705(2)(ii)(permitting § 26 P.S. evi 1 - monetary demnors "use a substitute for property’s dence of condemned rental income just compensation.” 26 P.S. 1-617.1. lease, under if lease was in effect rea within appealing regard While it is the condemna- condemnation); sonable time before or after driveway tion of the as a substitute for mone- 1-705(2)(iv) (permitting evidence of case, tary compensation in this Condem- replacing reproducing existing the cost of or its nor does not mention Section 617.1 in land); improvements 1- brief. 705(3) (permitting parties to show difference This, Road, in opinion, unacceptable. is Ac- my Grudevich the Code clarifies its significance determining is not fair cordingly, lost I would reverse order of Specifically, market value. condemnation Court. driveway adjustment constitutes majority wholly relies on the lan- un- alteration Condemnee’s 602(a), guage requires Section 705(2)(v), der as it main- Section forever fair market immedi- assessment access, rights tains in- Condemnee’s ately immediately before and after the tak- gress, egress. adjustment This Yet, ing. analysis acknowledge fails to property rights curative in Condemnee’s approach expert the Code’s liberal testi- comports types nature with mony fair determining market value. 705(2)(v). cures admissible under Section Indeed, majority’s analysis does Legislature As deemed that these of fair mar- consider the Code’s definition cures since properly “should considered any 603 or ket value Section value[,]” they fair see Com- affect market therein, factors such as those admissible 705(2)(v), ment to the Common- Section majority summarily under Article VII. The reversing wealth the order Court erred rebanee on Section dismisses Condemnor’s court, trial which admitted evidence 705(2)(v) case, by stating that how- “[t]his the driveway’s condemnation in deter- ever, proper involves construction mining that Condemnee’s was not 602(a).” De- Majority Op. at 18. permanently landlocked. assertion, spite proper this construction In operation, result the trial allows *15 602(a) requires of Section Section 603’s court realistically assess Condemnee’s value, fair market which definition of damages, as a willing informed seller ad- expressly turn is affected buyer substantially would to a agree and, specifical- missible under Article VII higher parcel of price landlocked 705(2)(v). 1 ly, 1932 See Pa.C.S. they property if certain that access were pari (requiring that statutes in materia eventually permanently
would
be
secured.
be
together).
shall
construed
Thus,
immediately
as assessed
after the
taking,
the fair market value of Con-
Furthermore,
majority’s analysis
prop-
remaining property
demnee’s
would
entirely
premised
upon pre-Code deci-
(1)
erly be affected
by:
technical and
sions;
expbeit
signified
as the Code
an
temporary
Con-
landlocking, during which
law,
change
majority’s depen-
in the
(2)
access; and
actually
demnee never
lost
inappropriate.
dence on these cases is
driveway,
which
condemnation of
First,
Dyer
majority relies on
v. Com-
permanently
right of
secured Condemnee’s
monwealth,
524,
The rule” be- the “before and after hered to permanent sates for a land- Condemnee permitting post- cause of concern that our com- very import belies the of locking, “would not condemnation evidence be is, pensation. compensation Condemnee’s contrary salutary to our well-estab- essentially just; purported, as here not rule and ‘after’ but would lished ‘before’ an effectively has become unwarranted and unwork- Furthermore, productive impractical majori- under windfall. damages.” Dyer, able is mandated to measure ty’s analysis, Condemnor suspi- stated our driveway, A.2d 763. We further pay once twice: to condemn landlocking. cions that: and once for the assumed 8,859 lay countervailing Proofs of collateral mat- owned acres of airport and adjacent Pittsburgh to the the introduction of collat- ter will follow 1,080 along airport feet of the matter; fronted the issue on eral confusion of separate government Two tak- parkway. confounded; trial and liti- will be worse First, in ings property. affected this taken gation over for land High- Secretary Governor in- truly condemnation will become their intent to des- ways publicly indicated terminable. “limited airport parkway as a ignate 4 (quoting Berger Id. at 763 n. v. Public highway.”5 designation would access Parking Pittsburgh, Auth. condemnee’s completely have severed the (1954)). Hence, A.2d Dyer but, airport parkway, as the access to compliance mandated strict with the com- Secretary Highways never submitted mon law “before and after rule” because plans designation, for the the condemnee antagonism this towards the intro- Court’s parkway through- maintained access duction in determining of collateral issues litigation Frontage. out the Id. at 4. just compensation. Second, 1956, Allegheny County con- however, Legislature, has en- since expand demned the the air- acted the which became effective on port. June 1964. 26 P.S. 1-302. The jury In a trial to determine the con- Comment to Section 705 reveals that the just compensation for the con- demnee’s Legislature approach intended a liberal demnation, County argued admissibility of future considerations seemingly imminent “limited access determining fair market value: “It is highway” designation had depreciated change existing intended this clause to pre-condemnation fair market value of the severely law which testimony restricts the property. appeal, condemnee’s On howev- the expert ground witness on the er, held that Court condemnors ‘collateral issues’ are introduced.” The depreciate pre-taking seek to Legislature’s express intent to broaden the of a condemnee’s on account “a scope expert testimony clearly evinces *16 threat to condemn or a threat to limit [a] disagreement holding with our in Dyer. property’s abutting highway.” access to an Thus, I majority’s find the reliance Id. at 5. Dyer unsupportable. ask judice The case sub does not Second, majority Frontage, relies on a immi- seemingly whether the effect of v. Allegheny County, Inc. highway designation nent or condemna- (1960). A.2d 1 Dyer, Like we decided regarding property’s tion is admissible Frontage Legislature before the enacted Rather, pre-condemnation value. this Thus, Frontage the Code. could not have Court must here determine whether the contemplated Legislature’s intent adjustment effect of a curative or altera- scope expert broaden the testimony re- regarding property’s tion is admissible garding fair market value. fair market value. In- post-condemnation
Moreover, distinguishable deed, Frontage distinguishes is between im- Code Frontage depreciate on its facts. The minent condemnee condemnations Highways highway, except may provided by 5. The Limited Access Act defines a highway public highway May limited access as "a responsible Act of authorities therefor.” occupants abutting 29, 1945, 1-15, amended, to which owners or §§ P.L. traveling public right or the have no §§ 2391.1-2391.15. to, ingress egress or from or across such value, the case pre-taking as was
Frontage, and of future curative John MONTGOMERY and Marsha evidence value, as affecting post-taking measures Montgomery, his Wife 604 of the Code the case here. Section provides: § 1-604. of imminence Effect BAZAZ-SEHGAL, M.D., Execu- Vitasta condemnation Kuldeep Sehgal, trix of Estate of
Any change the fair market value M.D., Deceased, Pittsburgh Greater which prior to the date of condemnation Impotence Aliquippa Center and Hos- the condemnor condemnee estab- pital, gen- substantially lishes was due to knowledge the imminence of eral Bazaz-Sehgal, Appeal M.D., of Vitasta condemnation, due other than that Kuldeep- Executrix of the Estate of physical deterioration M.D., Deceased, Sehgal, and Greater within the control of the reasonable Pittsburgh Impotence Center. condemnee, in de- disregarded shall be termining fair market value. Pennsylvania. Supreme Court of Thus, 1-604. cu- permits post-condemnation Argued March alterations, adjustments see su- rative Decided June pra, expressly excludes evidence of the imminent con- depreciating effects of an value of a pre-taking
demnation property.6
condemnee’s In view of the treatment, disparate I fail to find
Code’s decision, persuasive
Frontage, pre-Code
or even relevant.
Therefore, I dissent. joins dissenting
Justice CASTILLE
opinion.
*17
noted,
1958),
jurisdiction
expressly
probable
358 U.S.
our Court
held
6. While
has never
38,
(1958),
designation
highway”
79 S.Ct.