Guttha v. Commonwealth, Department of Transportation

DISSENTING OPINION BY

Senior Judge KELLEY.

I respectfully dissent.

In support of its determination that the appointment of a board of viewers on Gut-tha’s claim for general condemnation damages was properly quashed, the Majority cites to Appeal of Scholl, 292 Pa. 262, 141 A. 44 (1928), Amoco Oil Company v. Department of Transportation, 157 Pa. Cmwlth. 222, 629 A.2d 259 (1993) and Appeal of Hawk Sales Company, Inc., 38 Pa.Cmwlth. 535, 394 A.2d 657 (1978). However, in each of these cases, the leases in question were not considered by the trial court in a preliminary manner as a preliminary objection to the appointment of a board of viewers but, rather, were either considered by the board of viewers to determine the amount of damages to be awarded to the various parties in interest, or in a challenge to the award of the board of viewers. See, e.g., Appeal of Scholl, 292 Pa. at 265, 141 A. at 45 (“The city contended, before the viewers, that this provision of the lease precluded recovery on the part of this subtenant for any damages that might have been sustained because of the condemnation, the subtenancy having terminated at that date as effectually as though that period had been written into the lease. The city, therefore, took nothing from the subtenant....”); Amoco Oil Company, 629 A.2d at 260 (“[PennDOT], Amoco and Ms. Weiss appealed to the trial court. The sole question raised by Amoco and Ms Weiss concerns the amount of the award. [PennDOTJ’s appeal alleged that because Amoco had no right to damages the court should determine their preliminary objection in accordance with Section 517 of the Code, 26 P.S. § 1-517....”); Appeal of Hawk Sales Company, Inc., 394 A.2d at 659 (“[T]he board of view reasoned that a specific provision of the lease automatically terminated the Lessee’s leasehold interest at the time of the taking and that Lessee, therefore, had no compensa-ble interest. PennDOT and Lessee appealed these decisions to the court of common pleas. The court of common pleas confirmed the board’s determinations.... With regard to the question of general damages, the court found that a specific lease provision terminated Lessee’s leasehold interest at the time of the taking. Hence, Lessee had no leasehold interest upon which to base a claim for damages.”) (footnote omitted).

Thus, as in Appeal of Scholl; Amoco Oil Company, and Appeal of Hawk Sales Company, Inc., in this case the Lease should have been considered by the board of viewers in the apportionment of damages under the relevant provisions of the Eminent Domain Code, and not as a means by which the condemnor, Penn-DOT, could seek to quash Guttha’s claim for damages under the Code. As a result, the trial court in this case improperly quashed the appointment of the board of viewers with respect to all of Guttha’s claims for damages. Rather, the trial court should have directed the board of viewers to address the application of the Lease to the apportionment of all damages under the relevant provisions of the Code. See, e.g., Appeal of Hawk Sales Company, Inc., 394 A.2d at 659 (“[W]ith respect to the second heai’ing, the board of view filed a report on March 24, 1976 in which it assessed substantial damages against PennDOT for the Landowners’ benefit but refused to apportion such damages between Landowner and Lessee. The board of view reasoned that a specific provision of the lease automatically terminated the Lessee’s leasehold interest at the time of the taking and that Lessee, therefore, had no compensable interest....”); In re Condemnation for Legislative Route 23017, 79 Pa.Cmwlth. 512, 470 A.2d 1080, 1085 (1984) (“[W]e conclude, with regard to the instant case, that preliminary objections under Section 504 of the Code could have been used by the condemnor[, PennDOT,] to raise a legal challenge or objection to the condemnee’s claimed ownership of the easements set forth in the petition for viewers, which was filed on April 23, 1970. [PennDOTJ’s contention that those easements expired prior to the 1968 condemnation, because the trolley tracks had been removed, depends, as a threshold matter, on the construction and legal operation of the ancient deeds that created the easements. Had the condemnor raised its challenge by timely preliminary objections to the petition for viewers, the court could have directed the viewers to address the issue of the condemnee’s ownership of the easements. Appeal of Powell, 385 Pa. 467, 123 A.2d 650 (1956).”).

Accordingly, unlike the Majority, I would vacate the trial court’s order in all respects.