In re Taking in Eminent Domain of Certain Parcels of Real Estate

Opinion by

Senior Judge Kalish,

The City of Easton (Condemnor) appeals an order of the Court of Common Pleas of Northampton County which denied its post-trial motion requesting a new trial, and affirmed the courts earlier verdict awarding compensation to Salvatore Constanza (Condemnee) for the condemnation of his property. We vacate and remand.

In this non-jury eminent domain proceeding concerning Condemnee s property located at 641, 643, 645 and 647 Walnut Street, the trial court entered its verdict in favor of Condemnee, and awarded a total of $22,000 as just compensation. After fixing the amount of compensation, the trial court, in its verdict, added the following: “This sum is the amount of just compensation for the property disregarding the physical deterioration of the improvements because of the imminence of condemnation.”

The Condemnor contends that the trial court erred in not allowing testimony regarding the imminence of condemnation and the demolition costs. Our scope of review, where there is an appeal from an order denying a new trial, is limited to a determination of whether the trial court was guilty of a manifest abuse of discretion or an error of law. Borough of Tamaqua v. Knepper, 54 Pa. Commonwealth Ct. 630, 422 A.2d 1199 (1980).

It is a fundamental principle of eminent domain law that fair market value for damages is determined as of the date of condemnation. Frontage, Inc. v. Allegheny County, 400 Pa. 249, 162 A.2d 1 (1960). Recognizing that the period of time between planning and actual condemnation, while not sufficient to establish a condemnation, may affect market value, the Eminent Domain Code provides for such a contingency:

Any change in the fair market value prior to the date of condemnation which the condemnor or condemnee establishes was substantially due to the general knowledge of the imminence of condemnation, other than that due to physical deterioration of the property within the reasonable control of the condemnee, shall be disregarded in determining fair market value.

Section 604 of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. §1-604.

Thus, if there is a physical deterioration of the property within the reasonable control of the Condemnee, even though there is the imminence of condemnation, Section 604 does not change the prior law. The Condemnee must exercise his responsibility as an owner and keep his property in reasonable repair. If he does so, but nevertheless his property is vandalized or otherwise wrecked, he is entitled to compensation under Section 604. Miller Appeal, 55 Pa. Commonwealth Ct. 612, 423 A.2d 1354 (1980).

Unfortunately, the trial judge did not make findings of feet. However, in concluding that there was a physical deterioration, which the judge said he ignored in fixing damages, we can infer that the court found that the Condemnee fulfilled his responsibilities as a prudent owner, thus meeting his burden of showing the depressed value due to the imminence of condemnation.

Legal conclusions are always subject to appellate review. Felmlee v. Lockett, 466 Pa. 1, 351 A.2d 273 (1976). The court has a duty to decide whether the conclusion can be drawn from the testimony presented. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977).

The record shows that in September, 1981, prior to the actual date of condemnation, but during its imminence, the Condemnee did not make repairs to the roof, downspout, sidewalks, walls, ceilings, bathroom, kitchen and doors because, “we were waiting to see what was going to happen as far as investing or spending any more money on the property.” In March, 1982, the City deemed the property unfit for human habitation and from that time on the Condemnee made no repairs at all. It would have cost him at least $5,000 to bring the property up to code standards.

It is not in the public interest to encourage owners of property, which is scheduled to be acquired by eminent domain, to ignore applicable health and safety codes during that interim period. Miller Appeal.

Accordingly, we vacate the order of the trial court, and remand for a finding of fair market value as of the date of condemnation.

Order

Now, May 28, 1986, the order of the Court of Common Pleas of Northampton County, No. 1983-CM-6044, dated November 26, 1984, is vacated. The record is remanded to the Court of Common Pleas of Northampton County for a finding of the fair market value as of the date of the condemnation.

Jurisdiction relinquished.