Condemnation by the Commonwealth v. Commonwealth

555 A.2d 966, 124 Pa. Commw. 221, 1989 Pa. Commw. LEXIS 149
CourtCommonwealth Court of Pennsylvania
DecidedMarch 16, 1989
DocketAppeal No. 648 C.D. 1988
StatusPublished
Cited by4 cases

This text of 555 A.2d 966 (Condemnation by the Commonwealth v. Commonwealth) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Condemnation by the Commonwealth v. Commonwealth, 555 A.2d 966, 124 Pa. Commw. 221, 1989 Pa. Commw. LEXIS 149 (Pa. Ct. App. 1989).

Opinion

Opinion by

Senior Judge Barbieri,

John E. Sandin, William K. Hamburg and Elizabeth Willison, formerly Elizabeth Baun, (Appellants) appeal an order of the Allegheny County Court of Common Pleas sustaining the appeal of the Pennsylvania Department of Transportation (DOT) and vacating a report of a board of viewers.

This matter involves DOT’s condemnation for transportation purposes, of two contiguous tracts of vacant residential property in Ohio Township, Allegheny County. On October 30, 1985, DOT filed a declaration of [223]*223taking against each parcel. One of the declarations appropriated part of a 54 acre tract which at the time of condemnation was owned by John E. Sandin, Marilyn Sandin, and Elizabeth S. Baun, now Willison, as tenants in common. The parcel had been purchased in 1972, by John E. Sandin, his wife Marilyn Sandin and Elizabeth Baun and her former husband, now deceased, Clinton Baun, from a Mrs. Rosinski and will be referred to as the Rosinski tract.

Another declaration of taking was filed against part of an approximately 96 acre tract. This tract and the Rosinski tract are contiguous. At the time of condemnation, the record owners were John E. Sandin and William K. Hamburg t/d/b/a Avonworth Farms. In 1977, John E. Sandin, Clinton Baun, William Hamburg and Harold M. Weston purchased the parcel from a Mrs. Nock and it will be referred to as the Nock tract. Weston’s and Baun’s interests were later transferred to Avonworth Farms.

Sandin, Hamburg, and Willison are joint venturers on a project to develop the parcels as a planned unit development.1 A plan was drawn up in 1973 of both parcels showing three phases of development. In 1975, a plan of a planned unit development using both parcels was submitted to and approved by Ohio Township.

On January 13, 1986, Appellants filed a petition for appointment of a board of viewers claiming the two parcels form an “integrated use”. A board of viewers was appointed and after a hearing, issued its report. In its report, the Board applied the “integrated use” doctrine. It then valued both parcels as one entity, awarding Appellants $320,000.00. DOT appealed, claiming the board erred in treating the two tracts as one for damages purposes. Appellants also appealed the amount of the board’s [224]*224award as well as contesting its finding that the two tracts were incapable of separate development.

The trial court disposed of the matter prior to trial pursuant to Section 517 of the Eminent Domain Code2 (Code), which provides that objections raised on appeal, other than to the amount of the viewers’ award may be determined by the trial court preliminarily.

The trial court held that neither the “unity of use” nor the “integrated use” doctrines applied, vacated the decision of the board of viewers and remanded, ordering the viewers to value each tract separately. This appeal followed.3

The “unity of use” doctrine applies only to non-contiguous tracts which are so interconnected in the use to which they are applied, that the injury to one will permanently damage the other. Werner v. Department of Highways, 432 Pa. 280, 247 A.2d 444 (1968); Elgart v. Philadelphia, 395 Pa. 343, 149 A.2d 641 (1959).

The doctrine of “integrated use” has been applied where the interest of a person in condemned property is less than a fee interest and where that person also owns an interest in other property used at the time of condemnation along with the condemned property for a unified purpose such that the injury to one tract would permanently damage the other. See Werner; Porter v. Commonwealth, 419 Pa. 596, 215 A.2d 646 (1966) and Berman v. Urban Redevelopment Authority of Pittsburgh, 15 Pa. Commonwealth Ct. 1, 324 A.2d 811 (1974).

[225]*225Appellants agree with the trial court that neither the “unity of use” nor the “integrated use” doctrines are controlling in this matter. However, they maintain that the tracts should be assessed as one unit pursuant to Section 605 of the Code.4

Section 605 of the Code recognizes that just compensation requires that certain parcels should be assessed as one tract. In order for the tracts to be assessed as one parcel under this section, they must be “owned by one owner”. The section provides:

Where all or a part of several contiguous tracts owned by one owner is condemned or a part of several non-contigous [sic] tracts owned by one owner which are used together for a unified purpose is condemned, damages shall be assessed as if such tracts were one parcel. (Emphasis added.)

Appellants contend that the parcels should be considered to have one owner within the meaning of Section 605 because they are contiguous and plans have been filed showing an integral development of both properties for a residential planned unit development.

In Sams v. Redevelopment Authority of New Kensington, 431 Pa. 240, 244 A.2d 779 (1968), our Supreme Court held that two parcels could not be considered as having the same owners for Section 6055 purposes where one tract was owned by a partnership made up of two individuals and the other owned by a corporation which was solely owned by the same two individuals. In Sams the parcels were separated by a public road and a railroad and were therefore non-contiguous. The one tract which was condemned was owned by the partnership and being [226]*226used as a scrap yard. The other tract was being used by the corporate entity as a foundry. A board of viewers awarded damages to the appellees individually and as co-partners, assessing both tracts as a unit. On appeal, to the trial court, a jury returned a verdict in favor of the appellees, again assessing the tracts as one unit. Our Supreme Court reversed and remanded for a new trial holding that there could be no unity of use where there are not joint identical users of both parcels of land.

The Court stated that in order to assess non-contiguous tracts as one under Section 605, it is necessary to demonstrate that they are owned by one owner and are used together for a unified purpose. The Court found that the parcels were being used by distinct legal entities and therefore could not be assessed as one unit.

Although in the case at hand we are dealing with contiguous tracts of land, the rationale in Sams is applicable. Although Appellants need not demonstrate that the tracts are used for a unified purpose, they still must demonstrate that they are “owned by one owner”. Where one tract is owned by three individuals as tenants in common and the other by a partnership, we cannot say there is identical ownership even though one of the partners is also one of the tenants in common.

Appellants argue that our decision in Department of Transportation v. Beamer, 89 Pa. Commonwealth Ct. 490, 493 A.2d 130 (1985) is controlling. In that case, Mr. Beamer purchased a one acre tract of land in 1956.

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Bluebook (online)
555 A.2d 966, 124 Pa. Commw. 221, 1989 Pa. Commw. LEXIS 149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/condemnation-by-the-commonwealth-v-commonwealth-pacommwct-1989.