506 A.2d 511 | Pa. Commw. Ct. | 1986
Opinion by
This is an eminent domain case wherein, the Appellants, William J. Schwartz and Donna J. Schwartz, appeal an. order of the Court of Common Pleas of Allegheny County which denied their petition to modify an earlier court order. That earlier court order provided for the payment by South Park Township (Township) of just compensation into the court in return for the prothonotary marking the Appellants’ petition for appointment of viewers settled, discontinued and ended, with prejudice. Appellants contend that the common pleas court erred when it foiled to include delay damages and limited reimbursement of appraisal costs and attorney’s fees in the amount that the Township wás required to pay into the court. We affirm in part and reverse in part.
The following facts aré pertinent. Appellants were the owners of a parcel of land subject to a Declaration of
In this appeal, Appellants argue that the exclusion of delay damages under Section 611 of the Code and reimbursement of attorney’s fees and appraisal costs under Section 610 of the Code was error in that they were en
We initially note that it is the award of the Board of View, when not appealed, and not the order authorizing payment of just compensation into the court, which constitutes the final judgment in eminent domain cases. Sections 515 and 522 of the Code; 26 P.S. §§1-515 and 1-522; Hafez v. Redevelopment Authority of the City of Wilkes-Barre, 19 Pa. Commonwealth Ct. 202, 339 A.2d 644 (1975). See also Snitzer) Pennsylvania Eminent Domain §523. We also recognize that under Section 611 of the Code that a condemnee is entitled to an award of delay damages as a matter of right, calculated
Here, the Board of View, in its report of February 14, 1984, specifically found March 11, 1973 to be the date from which delay damages are to be calculated. That date was also found to be the date of relinquishment of possession. Therefore, since the Township did not appeal the viewers holding that possession was relinquished as of March 11, 1973, that determination was conclusive and the Appellants became entitled to delay damages calculated from March 11, 1973. Hay v. Commonwealth, 21 Pa. D. & C. 3d 567 (C. P. Somerset 1980). The Board of View needed only to determine the date of relinquishment of possession as no set figure for delay damages can be included by the board in its award in that delay damages can be calculated only at the time of payment of compensation. Alberts v. Urban Redevelopment Authority of Pittsburgh, 2 Pa. Commonwealth Ct.. 167, 277 A.2d 361 (1971). Payment by the Township into the common pleas court was not made until May 24, 1984 at which time the running of delay damages was stopped pro tanto. Matter of Condemnation by Redevelopment Authority of City of McKeesport, Allegheny County, 22 Pa. Commonwealth Ct. 390, 348 A.2d 918 (1975); Trexler v. Department of Transportation, 63 Pa. D. & C. 2d 792 (C. P. Lehigh 1974). Therefore, since the Appellants were entitled to delay damages as a matter of right, the common pleas court
We now turn, to the issue of whether the common pleas court erred as a matter of law when it failed to require the Township to partially reimburse the Appellants for attorney s fees and appraisal costs under Section 610 of the Code as a precondition to releasing the Township from liability to the Appellants. Section 610 reads as follows:
§1-610. Limited reimbursement of appraisal, attorney and engineering fees
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 sections 406(e) [26 P.S. §l-406(e)], 408 [26 P.S. §1-408] or 609 [26 P.S. §1-609] 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.
It is clear from the statutory language that a condemnee is not absolutely entitled to a limited reimbursement of appraisal, attorney and engineering fees under Section 610. The condemnee must first show that he or she is not entitled to reimbursemént of such fees under Sections 406(e), dealing with successful preliminary objections to a Declaration of Taking, 408, dealing with a revocation of condemnation proceedings by the condemnor, or 609, dealing with proceedings where no Declaration of Taking has been filed. Under those sections, the condemnee is entitled to reimbursement of all reasonable fees expended for appraisals, attorneys
Our reading of Section 610, however, compels us to conclude that the statute, unlike Section 611, is not self-executing and that a condemnee may waive his claim to partial reimbursement of fees under Section 610. Section 610 provides for reimbursement of expenses actually incurred. Therefore, a condemnee has the burden of showing that he or she expended funds for appraisals, áttorneys or engineering studies in order to be entitled to the limited reimbursement provided by Section 610. In their petition to modify the order of April 6, 1984, Appellants concede that they were present in court on April 6, 1984 and that no claim for attorney’s fees was made nor evidence submitted as to expenses actually incurred for appraisals, attorney’s fees or engineering studies. In feet, no such claim was made until the petition to modify was submitted by Appellants’, new counsel on July 6, 1984, three months after the hearing and order in question was entered. Under these circumstances, where no claim for reimbursement under Section 610 was made to the common pleas court nor was there evidence submitted as to actual expenses incurred for such reimbursable items, we hold that the Appellants have waived any claim that they had for partial reimbursement of appraisal, attorney’s and engineer’s fees under Section 610. The common pleas court correctly denied Appellants’ motion to amend on this ground.
In view of the foregoing, we shall reverse the order of the common pleas court which denied the Appellants’ motion to modify that court’s order of April 6, 1984 and
Order
Now, March 19, 1986, the Order of the Court of Common Pleas of Allegheny County at Docket No. GDB1-28077, dated October 11, 1984, which denied the petition of William J. Schwartz and Donna J. Schwartz to modify that courts order of April 6, 1984, is reversed insofar as it denied the claim for delay damages under Section 611 of the Eminent Domain Code, and affirmed insofar as it denied the claim for appraisal and attorneys fees under Section 610 of the Eminent Domain Code. The docket entry of the Prothonotary of the Court of Common Pleas of Allegheny County marking this matter as settled, discontinued and ended, with prejudice, is ordered stricken. The matter is remanded back to said court for further proceedings consistent with this opinion.
Jurisdiction relinquished.