holding that a tenant whose lease terminates before condemnation suffers no deprivation of possession or beneficial use and suffers no injury compensable under the Code
How later courts described this case
- holding that a tenant whose lease terminates before condemnation suffers no deprivation of possession or beneficial use and suffers no injury compensable under the Code
- “When their lease expired, the plaintiffs no longer had any property interest in the premises, nor was there any interference with or deprivation of their possession or the beneficial use or enjoyment of their leasehold interests.”
Written by the judges who cited it.
The opinion
Concurring Opinion by
Mr. Justice Cohen :
I concur in Chief Justice Beebes opinion and would have nothing further to say were it not for the concurring opinion by Justice Roberts. In order that the conclusions expressed by Justice Roberts here and in the Shippingport case should not distort the developing body of condemnation law, I wish to point out the inaccuracy of his position.
His concurrence in the instant case indicates that recovery for a taking is “possible only after an eminent domain proceeding has been brought and where someone is a eondemnee.” In Shippingport he states that “condemnee is a technical term that applies only where an eminent domain proceeding has been brought.” This position is not even arguably correct. “Condemnee” is defined in section 201(2) of the Eminent Domain Code, 1964, P. L. 84, §201, 26 P.S. §1-201 to mean “the owner of a property interest taken, injured or destroyed. . . .” This definition and the procedure provided in section 502(e) 1 indicate that the *117 legislature intended a result other than that suggested by Justice Roberts’ concurrences. As noted in the Comment to section 502 by the Joint State Government Commission, the petition for appointment of viewers is the procedure available to one whose property has been injured even though no formal condemnation proceeding has been brought by the condemnor. This request for viewers is the historical method of determining whether one qualifies for compensation as a condemnee, 2 and the Comment indicates that this method has not been disturbed by the Code. The function of the petition for appointment of viewers is to furnish a procedure by which a judicial determination can be made that a taking has or has not occurred. If it is determined that there has been a taking then the petitioner would qualify for relief if the taking is shown to be compensable.
The fallacy in Justice Roberts’ position is clear if you examine his suggested disposition in Shipping-port. There he found the property interest injured (i.e., a taking) but did not find the owner a “con *118 demnee.” Since “condemnee” is defined in the Code as owner of a property interest that is injured, his two determinations cannot exist side by side. (In Shippmgport he should have dissented).
The proceeding by petition for appointment of viewers remains available to those against whom a formal condemnation proceeding has not been directed so that it might be determined whether a taking has occurred and, if so, what compensable damages have been suffered.
Section 502(e) provides: “If there has been a compensable injury suffered and no declaration of taking therefor has been filed, a condemnee may file a petition for the appointment of *117 viewers substantially in the form provided for in subsection (a) of this section, setting forth such injury.”
In Griggs v. Allegheny County, 402 Pa. 411 , 168 A. 2d 123 (1961), reversed on other grounds, 369 U.S. 84 , 7 B. ed. 2d 585 (1962), Chief Justice Charles Alvin Jones said: “It is clear that a property owner may petition the court for the appointment of viewers to assess and award damages against an entity clothed with the power of eminent domain where such entity effects a ‘taking’ of the petitioner’s property whether or not the appropriator has followed the statutorily provided condemnation procedure. Rosenblatt v. Pennsylvania Turnpike Commission, 398 Pa. 111, 126-127 , 157 A. 2d 182 ; Philadelphia Parkway, 250 Pa. 257, 264-265 , 95 Atl. 429 ; Barron’s Use v. United Railway Co., 93 Pa. Superior Ct. 555, 557-558 . A ‘taking’ occurs when the entity clothed with the power of eminent domain substantially deprives an owner of the beneficial use and enjoyment of his property. Miller v. Beaver Falls, 368 Pa. 189, 196-197 , 82 A. 2d 34 ; Creasy v. Stevens, 160 F. Supp. 404, 410-412 .”