Petition — Captline v. County of Allegheny

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88-1143 DEC 19 198g

_ ALEXANDER L. STEVAS.

c- ’

IN THE

Supreme Court of the United States

October Term, 1983

CAROL M. CAPTLINE and EQUIBANKN.A,

Co-Executors of the Estate of

MIKE MAZZARDO, Deceased,

vs.

COUNTY OF ALLEGHENY,

SOLOMON AND TESLOVICH, INC., and

RAM CONSTRUCTION CO., INC.

PETITION FOR WRIT OF CERTIORARI

TO THE COMMONWEALTH COURT

OF PENNSYLVANIA

HENRY E. REA, JR.

BRANDT, MILNES & REA

Counsel for Petitioner,

Carol M. Captline

301 McKnight Park Drive

Pittsburgh, Pennsylvania 15237

(412) 367-3330

Batavia Times Publishing Co >

Pittsburgh. Pa (412) 881-7463

Question Presented for Review

Whether Allegheny County acquired title to subsurface

minerals owned of record by Kirk Industries, Inc., in

1958 and 1959, where Allegheny County instituted

condemnation proceedings in 1958 and 1959 which

named and notified only Mike Mazzaro, the record owner

of the surface estate, although the identity and

whereabouts of Kirk Industries, Inc., the record owner of

the subsurface estate, were easily ascertainable?

Answered in the affirmative by the Court below.

TABLE OF CONTENTS.

Page

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Appendix:

Order of the Supreme Court of Pennsylvania

entered September 20, 1983, denying Petition

for Allowance of Appeal ....................

Opinion and Order of the Commonwealth Court of

Pennsylvania entered May 2, 1983 ...........

Opinion and Order of the Court of Common Pleas

of Allegheny County, Pennsylvania, entered

Order of the Commonwealth Court of

Pennsylvania entered May 20, 1983, denying

application for reargument..................

16a

Page

TABLE OF AUTHORITIES.

Cases:

Goodrich v. Ferris, 214 U.S. 71, 53 L. Ed. 914, 29 S.

ON Ares ae a BA Ae ee 9

Grannis v. Ordeau, 234 U.S. 385, 58 L. Ed. 1363, 34

eS i 6) wel tech hnbavetek aes 9

Milliken v. Meyer, 311 U.S. 457, 85 L. Ed. 278, 61 S.

Ro ee dk ck wes aes eo doe ee a q

Mullane v. Central Hanover Bank & Trust Co.,

339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652

SG kine \n-a'c Ge Baik bo Wid ack e A Oe ce 8,9,10,14,15

Roller v. Holly, 176 U. S. 398, 44 L. Ed. 520, 20 S.

Schroeder v. City of New York, 371 U. S. 208, 9

L. Ed. 2d 255, 83 S. Ct. 279 (1962)............. 14,15

Statute:

Act of July 28, 1953, P. L. 723, Art. XXVI, Sec.

ee Pe I wi ak 5.6 Cobban Can suus secon coh 11,12

IN THE

Supreme Court of the United States

October Term, 1983

No.

CAROL M. CAPTLINE and EQUIBANK N.A.,

Co-Executors of the Estate of

MIKE MAZZARO, Deceased,

vs.

COUNTY OF ALLEGHENY,

SOLOMON AND TESLOVICH, INC., and

RAM CONSTRUCTION CO., INC.

PETITION FOR WRIT OF CERTIORARI

TO THE COMMONWEALTH COURT

OF PENNSYLVANIA

Opinions Below

The Opinion of the Court of Common Pleas of

Allegheny County, Pennsylvania, is reported at 130

P.L.J. 165 (1981). The Opinion of the Commonwealth

Court of Pennsylvania is reported at _... CMWLTH.

CT. (1983), 459 A.2d 1298 (1983).

Statement of Jurisdiction

The Decrees of the Commonwealth Court of

Pennsylvania were made and entered on May 2, 1983.

Thereafter, by Order entered June 23, 1983, the

Commonwealth Court of Pennsylvania denied

Petitioner's Application for Reargument. On September

20, 1983, the Supreme Court of Pennsylvania denied

Petitioner's timely Petition for Allowance of Appeal. The

jurisdiction of this Court is invoked under 28 U.S.C.

Section 1257 (3).

Constitutional Provisions

UNITED STATES CONSTITUTION

AMENDMENT V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the militia, when in actual

service in time of war or public danger; nor shall any

person be subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself; nor be

deprived of life, liberty or property, without due process

of law; nor shall private property be taken for public use

without just compensation.

UNITED STATES CONSTITUTION

AMENDMENT XIV, SECTION I

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the state wherein they reside. No

state shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any state deprive any person of life,

liberty or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.

Statement of the Case

These suits arise out of the construction of an

extension to Taxiway N-1 at the Greater Pittsburgh

International Airport in Findlay Township, Allegheny

County, Pennsylvania, during the summer of 1979. On

July 13, 1979, Allegheny County awarded a contract to

Solomon and Teslovich, Inc., to do all of the excavation

work necessary to improve the site for the construction

of Taxiway N-1. Thereafter, on July 18, 1979, Solomon

and Teslovich, Inc., assigned all of its interest in the

contract to Ram Construction Co., Inc.

In the process of the construction of Taxiway N-1 at

the Greater Pittsburgh International Airport, Ram

Construction Company, Inc., removed and sold tens of

thousand of tons of coal owned by the Estate of Mike

Mazzaro, Deceased. The claim of title to the subsurface

minerals by the estate of Mike Mazzaro, Deceased, is

based upon the following facts:

On February 19, 1955, Mike Mazzaro purchased 104.085

acres of land situated in Findlay Township, Allegheny

>»

County, Pennsylvania. The deed to Mike Mazzaro

specifically excepted and reserved to the grantor,

Cosgrove Coal Company, its successor and assigns, “‘all

the coal, gas, oil, limestone and other minerals

underlying said tract of land.”’

Thereafter, by Certificate of Amendment of the

Articles of Incorporation, dated March 1, 1955, and filed

with the Department of State of the Commonwealth of

Pennsylvania, the name of Cosgrove Coal Company was

changed to Kirk Industries, Inc.

On March 4, 1958, and May 5, 1959, the Allegheny

County Commissioners adopted resolutions authorizing

the condemnation, in fee simple, of the entire 104.085

acre tract owned by Mike Mazzaro in Findlay Township,

Allegheny County, Pennsylvania. The purpose of the

condemnation was to establish and maintain air

navigation and terminal facilities for what has come to

be known as the Greater Pittsburgh International

Airport.

In the condemnation proceedings which followed in the

Court of Common Pleas of Allegheny County,

Pennsylvania, Cosgrove Coal Company and its successor,

Kirk Industries, Inc., were not named as record parties

to the proceedings. Neither Cosgrove Coal Company nor

its successor, Kirk Industries, Inc., were ever given

actual notice of the pendency of the condemnation

proceedings in Allegheny County. Allegheny County

relied exclusively upon notice by publication.

On October 19, 1961, the Report of Viewers was filed,

Awarding Mike Mazzaro $71,980 as compensation for

the taking of his interest in the 104.085 acre tract.

Cosgrove Coal Company and its successor, Kirk

Industries, Inc., having never received notice, were not

present at the Viewers’ Hearing and were awarded

nothing for their interest in the subsurface minerals.

On September 20, 1965, years after the Viewers’

Award, Mike Mazzaro purchased the subsurface minerals

underlying eight parcels of property in Findlay

Township, Allegheny County, Pennsylvania, from Kirk

Industries, Inc. The conveyance was for valuable

consideration and included the 104.085 acre tract

previously condemned by Allegheny County.

As a result of the construction in 1979, and the

resulting conversion of the subsurface minerals,

Petitioners, Carol M. Captline and Equibank N.A., Co-

Executors of the Estate of Mike Mazzaro, Deceased,

instituted two actions in the Court of Common Pleas of

Allegheny County, Pennsylvania.

The first action was brought against Allegheny County

pursuant to the Eminent Domain Code of 1964. The

Petition fcr Appointment of Viewers in this action

alleged an inverse condemnation of coal and other

minerals underlying the 104.085 acre tract located in

Findlay Township. The Petition sought compensation for

the taking of real property by Allegheny County, a body

politic, clothed with the power of eminent domain.

A second action was brought against the contractors,

Solomon and Teslovich, Inc. and Ram Construction Co.,

Inc. This action was brought in trespass for the alleged

tortious conversation of the subsurface minerals owned

by the Mazzaro Estate. This second action sought an

accounting of the coal removed by defendants from the

104.085 acre tract and requested damages for the

conversion.

Allegheny County filed Preliminary Objections and

New Matter to the Petition for Appointment of Viewers.

The Preliminary Objections and New Matter denied the

allegations of the Petition for Appointment of Viewers

and, inter alia, averred that Allegheny County acquired

title to the subsurface minerals by virtue of the 1958 and

1959 condemnation proceedings.

Similarly, Solomon and Teslovich, Inc. and Ram

Construction Co., Inc. filed Preliminary Objections to the

Complaint in Trespass setting forth, inter alia, the same

defense as Allegheny County.

Plaintiff's Answer to these pleadings in both actions

raised the issue of the constitutionality of any purported

condemnation of the subsurface estate by virtue of the

1958 and 1959 condemnation proceedings. Thereafter,

the matters were consolidated before the Trial Court and

by Opinion of the Honorable Judge Silvestri dated

October 30, 1981, the Court of Common Pleas

of Allegheny County, Pennsylvania, determined that

Allegheny County constitutionally acquired the entire

interest in the 104.085 acre tract condemned, including

the underlying mineral rights, although the only form of

notice was by publication and posting containing only

the name of the owner of the surface estate, Mike

Mazzaro.

Timely appeals were taken from the Orders of Judge

Silvestri to the Commonwealth and Superior Courts of

Pennsylvania. Thereafter, the matters were consolidated

for disposition in the Commonwealth Court. The

questions raised in the Commonwealth Court were set

forth as follows:

1. Whether the condemning authority acquired

title to the subsurface minerals which had been

validly severed from the surface estate and

separately owned prior to the condemnation of the

surface estate where the owner of the subsurface

minerals was never made a party to or notified of

the condemnation proceedings?

Answered in the affirmative by the Court below.

2. Whether the Viewers’ Award included

compensation for the subsurface minerals which had

been validly severed from the surface estate and

separately owned prior to condemnation of the

surface estate where the owner of the subsurface

minerals was never made a party to or notified of

the condemnation proceedings and never introduced

evidence concerning the value of the subsurface

minerals?

Answered in the affirmative by the Court below.

Thereafter, by Opinion of the Honorable Judge

McPhail of the Commonwealth Court dated May 2,

1983, the court concluded that Allegheny County

effectively condemned the subsurface estate by

virtue of the 1958 and 1959 condemnation

proceedings regardless of whether the notice

afforded Cosgrove Coal Company or its successor,

Kirk Industries, Inc., satisfied the requirements of

due process as set forth in the Constitutions of the

Commonwealth of Pennsylvania and the United

States of America.

Argument.

The Commonwealth Court of Pennsylvania held that

regardless of any defects in the condemnation procedure

utilized in 1958 and 1959, Allegheny County acquired

title to the coal underlying the 104.085 acre parcel

because it was the County’s intention to do so. This

holding conflicts directly with the constitutional mandate

for due process as set forth in the Decisions of this

Court.

In Mullane v. Central Hanover Bank & Trust Co., 339

U.S. 306 (1950), the Central Hanover Bank and Trust

Company established a common trust fund pursuant to a

New York statute. A total of approximately 113 trusts

participated in the common fund. The exact number of

beneficiaries and their addresses was not made a part of

the record in the New York Court.

After administration of the common fund the Bank

petitioned a New York Court for settlement of its first

account. Pursuant to New York law, the only notice

given the beneficiaries was by publication in a local

newspaper and listed only the name and address of the

trust company, the name and date of establishment of

the common trust fund, and a list of all participating

estates, trusts or funds.

At the time of the filing of the petition for settlement,

the trial court appointed Mullane as attorney for all

parties not appearing and who may have an interest in

the trust fund. In this capacity, Mullane filed objections

questioning the constitutional validity of the notice

afforded beneficiaries. *

Addressing the Constitutional requirements of the due

process clause of the Fourteenth Amendment, this court

said:

‘Many controversies have raged about the cryptic

and abstract words of the due process clause, but

there can be no doubt that at a minimum they

require that deprivation of life, liberty or property

by adjudication be preceded by notice and

opportunity for hearing appropriate to the nature of

the case.” 339 U.S. at 313, 70 S.Ct. at 656 and 657.

In order to determine whether the notice and

opportunity for hearing afforded the beneficiaries of the

common trust fund satisfied the constitutional

requirements of the due process clause, the Court

balanced the interests of the State against the individual

interests of the beneficiaries. In this endeavor, the Court

recognized the interests of the state in bringing issues as

to fiduciaries to final settlement and said that they must

be balanced against the individual’s interest in an

opportunity to be heard which is protected by the

Fourteenth Amendment. In this regard, the Court stated

that the right to be heard has little value unless the

individual is informed that the matter is pending.

The Supreme Court in Mullane, supra, reiterated the

established principles of due process as set forth in

earlier decisions of that court. The Court said:

“An elementary and fundamental requirement of

due process in any proceeding which is to be

accorded finality is notice reasonably calculated,

under all the circumstances, to apprise interested

ee «ae & ee ee ee ee

them an opportunity to present their obj

Milliken v. Meyer, 311 U.S. 457, 61 S. Ct. 339, 85 L.

Ed. 278... The notice must be of such a notice as

reasonably to convey the required information

Grannis v. Ordeau, 234 U.S. 385, 34 S. Ct. 779, 58

L. Ed 1363, and it must afforc a reasonable time for

these interested to make their appearance, Roller v.

Holly, 176 U.S. 398, 20 S. Ct. 410, 44 L. Ed 520, and

of Goodrich v. Feris, 214 U.S. 71, 29 S. Ct. 580, 53

L. Ed 914." 339 U.S. at 314.

As with the case at bar, the appellee Bank in Mullane

relied upon statutory requirement of notice by

publication to inform interested parties. In this regard

the Court in Mullane remarked that it would be idle to

pretend that such publication is reliable to so inform

interested parties. The Court took notice of the fact that

the majority of such cases before the U. S. Supreme

Court involved process constructively served through

local newspapers. On this basis the Court held that

notice by publication was sufficient for beneficiaries

whose interests or whereabouts could not be ascertained

with “due diligence. However, with respect to the

ited leabatory ‘notion to: known beneticierips ie

inadequate, not because, in fact, it fails to reach

everyone, but because under the circumstances it is

not reasonably calculated to reach those who could

—_ be informed by other means at hand.’’ 339

5S. at 319.

It is important to note that the condemnation

proceedings at issue were brought under the provisions

of the Second Class County Code. The record discloses

that the only notice afforded interested parties was by

legal advertisements duly published (R. C. D. 48a).

Despite this fact, the Commonwealth Court concludes

that there was compliance with the statutory provisions

for notice. The Commonwealth Court concluded,

however, that the record facts do not disclose whether

Allegheny County took reasonable steps to provide

actual notice.

This holding of the Commonwealth Court clearly

conflicts with Mullane v. Central Hanover Bank & Trust

Co. In Mullane, the Bank relied exclusively upon the

statutory requirements and the record did not reflect the

addresses of any beneficiaries or any attempts to

ascertain any addresses. Nevertheless, the Court found

the notice employed to be unconstitutional.

In the case at bar, the record reflects that Allegheny

County did not satisfy the requirements of Article XXVI

of the Second Class County Code. The record also

reflects that Kirk Industries, Inc., the record owner of

the coal, was a property owner in Allegheny County and

a registered Pennsylvania corporation whose Articles of

Incorporation were amended as recently as March l,

1955. Therefore, it is clear that the requirements of due

process were not afforded Kirk Industries because no

attempt was made to notify it of the pendency of the

proceedings.

The 1958 and 1959 condemnation resolutions were

adopted pursuant to the provisions of the Second Class

County Code. Article XXIV of the Code vests Allegheny

County with the power of Eminent Domain for the

purpose of establishing and maintaining air navigation

and terminal facilities.

In regard to the procedure for the condemnation of

lands under Article XXIV, Section 2403 provides:

“The proceedings for the condemnation of lands

under the provisions of this article and for the

assessment of damages for property taken, injured

or destroyed shall be conducted in the same manner

as provided under Article XXVI.”

Article XXYI of the Second Class County Code sets

forth the manner in which condemnation proceedings are

to be conducted. Section 2604 grants the right to

damages to all owners of land, property or materia!

appropriated, injured or destroyed. Section 2608

provides, further, the right to petition the Court for the

appointment of viewers to fix the amount of damage.

In regard to notice, Section 2604 provides:

“Notice of the time and place of said meeting shall

be given in the manner provided by law for the

service of summons in a personal action upon all

parties allowed damages and against whom benefits

have been assessed, as shown by said schedule, if

the said parties can be found in the county, or upon

an adult person, if any, residing upon the property

affected in case the owner or reputed owner cannot

be found, and to all others by publication in the

newspaper or newspapers in which the first notices

of said view were published. When no service is

made upon the owner, reputed owner or upon an

adult person residing upon the property affected,

said notice, where publication thereof has also been

made, shall be deemed to have been properly served

if tacked or conspicuously posted on the premises.

The court may provide by whom the notice provided

by this act shall be posted, given and served, and fix

the compensation for said service.

The condemnation resolutions adopted by Allegheny

County describe the condemned parcel as containing 88.1

and 15.536 acres and both situate in Findlay Township

and owned by Mike Mazzaro. Neither condemnation

resolution named Kirk Industries as the owner of the

coal underlying the condemned parcel although the

public records disclose that Kirk Industries owned the

coal continuously from the time the condemnation

resolutions were adopted until after the Viewers’ award

was made.

At no time during the condemnation proceedings was

Kirk Industries described as the owner of any interest in

the condemned parcel. The record clearly demonstrates

also that Kirk Industries was never made a party to the

proceedings or otherwise notified of their pendency. The

record reveals, further, that no attempt was ever made

to locate the whereabouts of Kirk Industries. Finally, the

Viewers’ award makes no reference to Kirk Industries’

interest in the subsurface coal and makes no

apportionment between Mazzaro and Kirk Industries of

the damages assessed.

Since the decision of the Commonwealth Court in this

matter, two depositions were taken which impact on the

questions of notice and the assessment of damages.

First, the deposition of William N. Nicholls revealed

that Allegheny County was aware of the interest of Kirk

Industries in the condemned parcel as well as the

whereabouts of Kirk Industries. Mr. Nicholls was

employed by Allegheny County during the relevant

period as Director of the Claims and Investigations

Department. In that capacity, Mr. Nicholls worked with

the County Law Department to arrive at a figure to

compensate Mike Mazzaro for his interest in the surface

of the condemned parcel. In this endeavor, Mr. Nicholls

discovered the interest of Kirk Industries in the

subsurface coal and reported that fact to the County

Law Department. Mr. Nicholls testified further that the

whereabouts of Kirk Industries was known at the time

and it was concluded that the County would not

condemn the coal at that time.

Second, the deposition cf Thomas P. Trimble revealed

that no evidence was introduced before the Board of

Viewers concerning any interest of Kirk Industries in the

subsurface coal. Further, that the Viewers’ award did not

include any compensation for the subsurface coal. Mr.

Trimble discerned this from the fact that the Viewers’

award did not apportion any damages to any interest

other than that of Mike Mazzaro.

5 1

In Schroeder v. City of New York, 371 U.S. 208, 83 S.

Ct. 279, 9 L. Ed 2d 255 (1962), the U. S. Supreme Court

applied the due process principles enunciated in Mullane

in the context of an eminent domain proceeding. In

Schroeder, supra, the City of New York instituted

proceedings to divert a portion of the Neversink River,

thereby affecting certain riverfront property owned by

appellant. Pursuant to statute, the only notice given

appellant was by publication and posting. In addition,

although appellant’s name and address was readily

ascertainable, neither the publication nor posted notices

contained the name of appellant.

In holding that the notice to appellant did not measure

up to the quality of notice which the due process clause

requires, the Court reasoned from Mullane that the

general rule is that notice by publication is not enough.

If the names and addresses of those whose legally

protected interests are directly affected by the

proceedings are easily ascertainable, then the reason for

resort to a means less likely than the mails to apprise

them of its pendency disappears. The clear result of the

Schroeder Court is that in condemnation proceedings, if

due process is not afforded, the property interest of the

owner cannot be foreclosed.

Conclusion

The decision of the Commonwealth Court of

Pennsylvania conflicts directly with the constitutional

mandate of this Court in both Mullane v. Central

Hanover Bank & Trust Co., supra, and Schroeder v.

City of New York.

The record in the case at bar reveals that no effort was

made to notify Kirk Industries of the pendency of any

proceedings. In fact, in later discovery, it was revealed

that Allegheny County intentionally failed to name Kirk

Industries as a party.

' Therefore, the purported condemnation was a nullity

and the decision of the Commonwealth Court must be

remanded.

Respectfully submitted,

BRANDT, MILNES & REA

HENRY E. REA, JR.

Counselor for Petitioner

Carol M. Captline

APPENDIX

Order of the Supreme Court of Pennsylvania

entered September 20, 1983, denying

Petition for Allowance of Appeal

THE SUPREME COURT OF PENNSYLVANIA

Western District

Carl Rice, Esq. 801 City-County Building

Prothonotary Pittsburgh, Pa.

Irma T. Gardner 15219

Deputy Prothonotary

September 22, 1983

Carl Brandt, Esquire

301 B. McKnight Park Drive

Pittsburgh, PA 15237

IN RE: Carol M. Captline, et al. v.

County of Allegheny

No. 176 W.D. Allocatur Docket, 1983

Dear Mr. Brandt:

This is to advise you that your Petition for Allowance

of Appeal in the above-captioned matter was denied by

the Court on September 20, 1983.

Very truly yours,

CARL RICE

Carl Rice, Esq.

CR:kk

cc: Samuel P. Kamin, Esquire

Richard B. Tucker, Esquire

Honorable John A. MacPhail

Opinion and Order of the Commonwealth Court

of Pennsylvania entered May 2, 1983

IN THE

COMMONWEALTH COURT OF PENNSYLVANIA

CAROL M. CAPTLINE and EQUIBANK N.A..,

Co-Executors of the Estate of

MIKE MAZZARO, Deceased,

COUNTY OF ALLEGHENY,

CAROL M. CAPTLINE, Co-Executor of the

Estate of MIKE MAZZARO, Deceased,

Appellant.

No. 2865 C.D. 1981

IN THE

COMMONWEALTH COURT OF PENNSYLVANIA

CAROL M. CAPTLINE and EQUIBANK N.A.,

Co-Executors of the Estate of

MIKE MAZZARO, Deceased,

Vv.

SOLOMON & TESLOVICH, INC. and

RAM CONSTRUCTION CO., INC.,

CAROL M. CAPTLINE, Co-Executor of the

Estate of MIKE MAZZARO, Deceased,

Appellant.

No. 5 T.D. 1982

eis

. - F

en tS 4 nee

Appendix—Opinion and Order of the Commonwealth

Court of Pennsylvania entered May 2, 1983.

Before:

HONORABLE JAMES CRUMLISH, JR.,

President Judge

HONORABLE JOHN A. MacPHAIL, Judge

HONORABLE JOSEPH T. DOYLE, Judge

ARGUED: October 6, 1982

OPINION BY JUDGE MacPHAIL FILED May 2 1983

Carol M. Captline and Equibank N.A. (Appellants)

have brought these appeals from orders of the Court of

Common Pleas of Allegheny County sustaining the

preliminary objections of Allegheny County (County) to a

petition for the appointment of viewers as well as the

preliminary objections to a complaint in trespass and for

an accounting filed by Solomon and Teslovich, Inc. and

Ram Construction Company, Inc.

The facts of this case are stipulated.’ Appellants are

co-executors of the estate of Mike Mazzaro. Mazzaro

acquired title to a 104.085 acre tract of land in Findlay

Township, Allegheny County by a deed executed on

February 17, 1955, from Cosgrove Coal Company’

(Cosgrove Coal). The deed expressly excepted and

reserved to Cosgrove Coal al! the mineral rights

underlying the tract of land.

On March 4, 1958 and May 5, 1959, the Board of

Commissioners of Allegheny County (Commissioners)

condemned (hereinafter the 1958/1959 condemnation) the

' Although the trial court refers to ‘stipulated facts,” there is no

written stipulation of facts. Ratner, the record of this case consists

entirely of documentary evidence uncontested by either party.

*The deed was recorded in the Allegheny County Office for the

Recording of Deeds on February 28, 1955.

Appendix—Opinion and Order of the Commonwealth

Court of Pennsylvania entered May 2, 1983.

tract of land for the purpose of constructing an airport.’

The resolutions provided in pertinent part for the

acquisition of title of the lands described “‘in fee simple,

said property being owned by Mike Mazzaro.” The

County filed a petition for the appointment of viewers in

the Court of Common Pleas. Notice was given to

Mazzaro, was posted on the property and was published

in three local papers. The report of viewers, submitted to

the Court of Common Pleas on October 19, 1961,

determined the value of the property condemned to be

$71,980.‘ The report did not allocate any amount of the

award to Cosgrove Coal, nor did it make any reference to

the coal interest. No appeal was taken from this report

and Mazzaro received the full amount of the award.

On September 20, 1965, Cosgrove Coal* conveyed to

Mazzaro, by way of quitclaim deed, all the mineral rights

to the tract of land “together with the appurtenances

thereunto belonging and all the estate, right, title and

interest, claim or demand whatsoever of [Cosgrove

Coalj."" Nothing further occurred until July 18, 1979,

when the Commissioners entered into a contract with

Solomon & Teslovich for the grading, paving, drainage

and lighting for the extension of a taxiway at the airport.

The contract authorized the contractor to take

possession of any coal excavated in the process of

Appendix—Opinion and Order of the Commonwealth

Court of Pennsylvania entered May 2, 1983.

construction. This contract was subsequently assigned to

' Ram Construction which, in the course of construction,

did remove coal underlying the tract of land herein at

issue.

Appellants then filed their petition for the appointment

of viewers pursuant to Section 502(e) of the Eminent

Domain Code (Code), Act of June 22, 1964, Special Sess.,

P.L. 84, as amended, 26 P.S. §1-502(e), as well as an

action in trespass against Solomon & Treslovich and

Ram Construction. All defendants filed a variety of

preliminary objections, which were consolidated for

hearing and disposition by the trial court. The court held

that the coal interest was validly taken by the 1958/1959

condemnation and was fully paid for pursuant to the

award of the 1961 report of viewers, that any rights

arising from Cosgrove Coal’s claim to the coal interest

were lost due to Cosgrove Coal’s failure to assert any

claim before the viewers after due notice had been

provided, and that regardless of whether notice was

properly given, any claim Mazzaro obtained from

Cosgrove Coal would not be against Allegheny County,

but rather would be against Mazzaro, who received the

Appendix—Opinion and Order of the Commonwealth

Court of Pennsylvania entered May 2, 1983.

Our scope of review in eminent domain cases is limited

to a determination of whether the court abused its

discretion or committed an error of law. Speicher

Condemnation Appeal, 58 Pa. Commonwealth Ct. 321,

324-25, 428 A.2d 282, 284 (1981).

The first issue which we must address is the extent of

the 1958/1959 condemnation. Appellants argue that the

condemnation effected only a taking of the surface

estate’ in fee simple and was not a taking of the mineral

rights. Therefore, Appellants contend, the 1979 removal

of the coal constituted either a trespass or a de facto

taking. The question presented, then, is: what did the

County intend when it resolved to take the property

described “in fee simple, said property being owned by

Mike Mazzaro’’?

The term “fee simple’’ properly defined refers to the

extent of alienability one would enjoy in the ownership of

land. Black’s Law Dictionary defines a fee simple estate

as “one in which the owner is entitled to the entire

property, with unconditional power of disposition

during his life, and descending to his heirs and legal

representatives upon his death intestate.” Id. at 742 (4th

Ed. 1968). It seems clear that this meaning of the term

are inapplicable to an eminent domain proceeding. See, e.g.,

Department of Transportation v. Hess, 55 Pa. Commonwealth Ct. 27,

423 A.2d 434 (1980). As for the trespass action, Rule 1038 by its

terms applies only to “the trial of an action” and therefore is

pn ns ele Pall pgs Baers yo An order

objections in the nature of a demurrer is a

or yard See Hudock v. Donegal Mutual Insurance Co., 438 Pa.

272, 264 A.2d 668 (1970).

" And the necessary surface support.

Appendix—Opinion and Order of the Commonwealth

Court of Pennsylvania entered May 2, 1983.

was intended by the Legislature when it gave the County

the power to take-land in fee simple.* Therefore, the

statutory meaning of fee simple does not provide an

answer to the question of the intent of the County in the

1958/1959 condemnation concerning these mineral rights.

Cf. Starkey v. City of Philadelphia, 397 Pa. 512, 156

A.2d 101 (1959) (At issue was whether a base or full fee

was taken for an airport pursuant to Section 2 of the Act

of May 12, 1925, P.L. 614, 53 P.S. 14162).

There exists a body of law, however, which does

discuss the extent of ownership rights. ““The ownership

of the surface carries with it, if there be no obstacle to

the application of the general rule, title downward to the

center of the earth and upward indefinitely.”” Delaware

and H. Canal Co. v. Hughes, 183 Pa. 66, 69, 38 A. 568, 569

(1897). “That a title in fee to land is a title to everything

seems an elementary statement... .’’ Brooks v. Shepard,

157 F.Supp. 379, 382 (S.D. Ala. 1957) (applying Alabama

law). Thus, one would expect in the normal case that a

taking of land in fee would also involve a taking of the

minerals. Brooks v. Shepard. Cf. Sunbeam Coal Corp. v.

Pennsylvania Game Commission, 37 Ra. Commonwealth

Ct. 469, 391 A.2d 29 (1978) (wherein the Game

*The common law and early Pennsylvania law view concerning the

estate acquired by condemnation was that only a conditional fee (with

possibility of reverter) or an easement was taken. See Pittsburgh

Naticnal Bank v. Equitable Gas Company, 421 Pa. 468, 220 A.2d 12,

cert. denied, 385 U.S. 988 (1966); Long v. Monongahela City School

District, 395 Pa. 618, 151 A.2d 461 (1959). However, in 1937 the

Legislature provided a method by which these lesser estates could be

expanded into a full fee. Act of July 2, 1937, P.L. 2793, as amended,

53 P.S. §$§1171-1173. In 1949, the Legislature gave to political

subdivisions the general power to condemn in fee simple. Act of April

14, 1949, P.L. 442, 26 P.S. §201.

Appendix—Opinion and Order of the Commonwealth

Court of Pennsylvania entered May 2, 1983.

Commission filed a condemnation resolution in fee simple

leading a mineral rights owner to file a petition for

appointment of viewers, after which the Commi.3ion

clarified its position as a taking of the surface only).

The problem which is presented here is_ that

Pennsylvania law recognizes three distinct estates

land which can be held in fee simple separate and

distinct from each other: the surface, the mineral rights

and the right of support. See, e.g., Smith v. Glen Alden

Coal Co., 347 Pa. 290, 32 A.2d 227 (1943). Here, at the

time of the condemnation, it would seem that the

“property being owned by Mike Mazzaro”’ did not

include the mineral rights. Still, we cannot subscribe to a

view that holds that the actual extent of Mazzaro’s

ownership per se delineates the extent of the County’s

intended condemnation. Cf. Curtis v. Redevelopment

Authority of Philadelphia, 482 Pa. 58, 393 A.2d 377

(1978) (Petition for appointment of viewers did not

mention easement, yet easement was found to be

condemned with the fee simple). Rather, we believe that,

absent evidence that the County in fact knew of the

existence of a separate mineral estate owner or other

evidence indicating contrary intent, such as the type of

evidence presented to the viewers for their consideration,

see Cushing v. Gillespie, 208 Okla. 359, 256 P.2d 418

(1953), a condemnation in fee simple of a tract of iand

must be considered a condemnation of all estates in the

land. Cf. Porter v. Commonwealth, 419 Pa. 596, 215 A.2d

646 (1966) (In defining the word “property” in Section

507 of the Code, 26 P.S. §$1-507, the Court refused to

split a single land condemnation into multiple

proceedings in the face of condemnee’s claim that its fee

Appendix—Opinion and Order of the Commonwealth

Court of Pennsylvania entered May 2, 1983.

simple interest in the minerals was a separate property);

Department of Transportation v. Haydu, 1 Pa.

Commonwealth Ct. 561, 569, 276 A.2d 346, 350 (1971)

(where Judge Rogers quoted with approval the appellee's

argument in Porter that ‘‘[t}he doctrine of fee simple

ownership of minerals should be limited to the field of

mineral law, from whence it derived and should not be

extended to the law of eminent domain where it is

neither practical or logical’). In the record before us,

there exists no evidence from which a contrary intent

can be inferred. The County’s intention to construct

airport facilities seems to us, on the other hand, to

provide further support for an inference that the County

did intend to condemn ail estates in the land.’

Having determined, in agreement with the trial court,

that the County intended to condemn the mineral

interests by the 1958/1959 condemnation, we must next

examine Appellant’s claim that a present action seeking

compensation would not be barred because the County

failed to give Cosgrove Coal proper notice. The trial

court concluded, and we agree, that there was compliance

with the statutory provisions for posting and publication

of notice in effect at that time. However, we disagree

with the trial court that the evidence presented shows

that the notice provided complied with the notice

mandated by the due process clause of the fourteenth

amendment. U.S. Const. amend. XIV, $1. In this regard

the case of Curtis v. Redevelopment Authority of

* We would note that according to the 1955 deed, Mazzaro purchased

his surface interest for $6,000 and in 1961 received an award of

$71,989, suggesting that the viewers considered that more than the

surface interest was being condemned.

10a

Appendix—Opinion and Order of the Commonwea!th

Court of Pennsylvania entered May 2, 1983.

Philadelphia. 482 Pa. 58, 393 A.2d 377 (1978) is

controlling. In Curtis an easement holder of record was

not given notice of the 1960 condemnation of the

servient tenement. The Court, after a review of relevant

state and federal cases, held:

There was no affirmative burden on [the easement

holder] to inspect the servient estate in order to be

put on notice by the postings. To the contrary, the

burden was on the Authority to conduct a search for

recorded interests and then to take reasonable steps

to notify holders of such recorded interests. To hold

Otherwise would countenance the practice of the

Authority of ignoring the recording system of this

jurisdiction.

Id. at 65, 393 A.2d at 380 (footnote omitted).

Cosgrove Coal’s interest was easily determinable

through a simple title search. Thus the County was

required to undertake “reasonable steps’’ to provide

actual notice to Cosgrove Coal. Unfortunately, we are

unable to determine what “reasonable steps” would be in

this case. The stipulated facts do not disclose whether

Cosgrove Coal received actual notice, or whether

Cosgrove Coal’s mailing address could have been

ascertainable. Further evidence is necessary before a

determination can be made as to whether posting and

published notice alone satisfied the requirements of due

process in this matter.

The trial court, recognizing the importance of

Appellant’s due process claims, determined that it would

also analyze whether Mazzaro"* could assert any further

claim against the County in light of the 1961 award. The

‘* And consequently his estate.

lla

Appendix—Opinion and Order of the Commonwealth

Court of Pennsylvania entered May 2, 1983.

court held that Mazzaro did acquire all rights subsequent

to the condemnation which Cosgrove Coal may have had

as a result of the taking,'' but that Mazzaro’s claim was

against himself and not the County as a result of his

receipt of the 1961 award. The Court reached this

conclusion by interpreting Section 2627 of the Second

Class County Code'*—‘‘Upon payment of the

compensation for land or property in accordance with the

order of distribution, all claims for compensation shall be

deemed paid and satisfied’’—to mean that, as a matter of

law, the 1961 award was full compensation for all

damages.

We would certainly agree with the trial court that the

purpose of Section 2627 is to ensure that the full

measure of damages is determined in a single proceeding.

However, this case presents a unique set of

circumstances. There is nothing in the documentary

evidence before us to show that the viewers gave full

consideration to the value of the coal interest, nor can we

determine from that evidence that Mazzaro took any

active steps to acquire compensation for the coal interest

from the viewers in 1961. Cosgrove Coal certainly did not

"' Generally, one who acquires title to property subsequent to the

time of taking is not entitled to bring an eminent domain proceeding.

Rednor & Kline, Inc. v. Department of Highways, 413 Pa. 119, 121,

196 A.2d 355, 356 (1964). See Green v. Pittsburgh, 311 Pa. 132, 166

A. 586 (1933). The trial court held that the quite’ im deed transferred

Cosgrove Coal's personal claim to Mazzaro. That ruling has not been

contested on appeal.

'*16 P.S. $5627. The Second Class County Code provisions on

eminent domain were applicable at the time of the condemnation of

the property.

12a

Appendix—Opinion and Order of the Commonwealth

Court of Pennsylvania entered May 2, 1983.

present any claim for damages and the viewers did not

pay into court an award for the coul interest.

Disregarding for the moment the transfer of Cosgrove

Coal’s claim to Mazzaro, principles of fairness dictate

that a person who was never notified of a condemnation

and whose interest was not protected in the proceedings

must later be permitted to seek compensation from the

condemning authority. See Curtis. If compensation was

improperly paid to other parties, then it should be the

condemnor’s duty to obtain reimbursement."

We do recognize, however, that Cosgrove Coal’s claim

was transferred to the party, Mazzaro, who the County

contends was previously paid for the interest. We have

no desire to allow Mazzaro’s estate to obtain a windfall

as a result of these unique set of circumstances,

especially in light of the apparently high compensation

Mazzaro received in cOmparison to his purchase price.

See note 9, supra. Therefore, should this case on remand

proceed to a Board of View, the viewers must consider

the extent to which Mazzaro did obtain compensation

previously for the mineral interest and award damages

only to the extent not previously compensated. Cf.

Department of Transportation v. Gardone, 67 Pa.

eee eng: PONE hele ee ee Code, 16 P.S. §5630.

‘* This situation differs from that presented in Green v. Pittsburgh,

311 Pa. 132, 166 A. 586 (1933), in which a tenant in common’s name

that the aggrieved owner should have known of the striking of his

name and thus held that he had no further claim against the

condemnor. It is also obvious from the case that the extent of

damages to his estate were fully compensated by the viewers, albeit

to the wrong party.

13a

Appendix—Opinion and Order of the Commonwealth

Court of Pennsylvania entered May 2, 1983.

Commonwealth Ct. 273, 446 A.2d 1369 (1982) (damages

not contemplated. in prior condemnation can be

compensated in later action). The trial court on remand

shall consider the question of notice, in accordance with

this opinion’s previous treatment of that issue. Once the

Court determines when notice was provided to’the owner

of the mineral interest, it can then answer the question

of the applicability of the statute of limitations, which

was raised before, but not determined by, the court. In

this regard, the trial court should note the Supreme

Court’s determination on the statute of limitations

question in Curtis, 482 Pa. at 65, 393 A.2d at 380.

The trial court’s dismissal of the trespass action is

affirmed in view of our determination that the coal

interest was subject to the prior condemnation. See

Curtis.

JOHN A. MacPHAIL

John A. MacPhail, Judge

14a

Appendix—Opinion and Order of the Commonwealth

Court of Pennsylvania entered May 2, 1983.

ORDER

IN THE

COMMONWEALTH COURT OF PENNSYLVANIA

CAROL M. CAPTLINE and EQUIBANK N.A..,

Co-Executors of the Estate of

MIKE MAZZARO, Deceased,

COUNTY OF ALLEGHENY,

CAROL M. CAPTLINE, Co-Executor of the

Estate of MIKE MAZZARO, Deceased,

c Appellant.

No. 2865 C.D. 1981.

IN THE

COMMONWEALTH COURT OF PENNSYLVANIA

CAROL M. CAPTLINE and EQUIBANK N.A.,

Co-Executors of the Estate of

MIKE MAZZARO, Deceased,

Vv.

SOLOMON & TESLOVICH, INC. and

RAM CONSTRUCTION CO., INC.,

CAROL M. CAPTLINE, Co-Executor of the

Estate of MIKE MAZZARO, Deceased,

Appellant.

—

No. 5 T.D. 1982.

15a

Appendix—Opinion and Order of the Commonwealth

Court of Pennsylvania entered May 2, 1983.

The order of the Court of Common Pleas of Allegheny

County in No. GD 81-02291, dated October 30, 1981, is

reversed and remanded for proceedings not inconsistent

with this opinion.

The order of the Court of Common Pleas of Allegheny

County in No. GD 81-03197, dated October 30, 1981, is

hereby affirmed.

Date May 2, 1983.

JOHN A. MacPHAIL

John A. MacPhail, Judge

Certified from the Record

May 2-1983

Francis C. Barbush

Chief Clerk

16a

Opinion and Order of the Court of Common Pleas

of Allegheny County, Pennsylvania, Entered

October 30, 1981

IN THE COURT OF COMMON PLEAS

of Allegheny County, Pennsylvania

Civil Division

CAROL M. CAPTLINE and EQUIBANK, N.A.,

as Co-Executors of the Estate of

Mike Mazzaro,

Plaintiffs,

Vv.

COUNTY OF ALLEGHENY,

Defendant.

No. GD 81-02291

Issue No.

Code

CAROL M. CAPTLINE and EQUIBANK, N.A.,

as Co-Executors of the Estate of

Mike Mazzaro,

Plaintiffs,

Vv.

SOLOMON & TESLOVICH, INC., and

RAM CONSTRUCTION CO., INC.,

Defendants.

No. GD 81-03197

Issue No.

Code 009

17a

Appendix—Opinion and Order of the Court of Common

Pleas of Allegheny County, Pennsylvania,

Entered October 30, 1981.

OPINION AND ORDER

‘Filed by

HONORABLE SILVESTRI SILVESTRI

JUDGE

Copies to

Carl Brandt, Esq.

Anthony P. Picadio, Esq.

Samuel Kamin, Esq.

OPINION.

SILVESTRI, J.

Plaintiffs Carol Captline and Equibank, N.A., as co-

executors of the estate of Mike Mazzaro, have initiated

two actions to recover the value of coal underlying land

condemned by Allegheny County for air navigation and

terminal facilities. The action at No. GD 81-02291, a

petition for the appointment of viewers, was instituted

against defendant Allegheny County pursuant to Section

502(e)' of the Eminent Domain Code, Act of June 22,

1964, P.L. 84, 26 P.S. §1-502(e), alleging a de facto taking

of coal and other minerals underlying the property

condemned by Allegheny County. An action in trespass

and for an accounting, at No. GD 81-03197, was

instituted against defendants Solomon and Teslovich,

Inc. and Ram Construction Company, Inc.’ alleging a

' Section 502(e) of the 1964 Eminent Domain Code 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 viewers . . ., setting forth such injury.

*Both defendants are Pennsylvania corporations having their

principal offices or places of business in Pennsylvania.

18a

Appendix—Opinion and Order of the Court of Common

Pleas of Allegheny County, Pennsylvania,

Entered October 30, 1981.

willful and unlawful invasion of the interest claimed by

the plaintiffs, resulting from the removal of coal during

construction at the Greater Pittsburgh Internationai

Airport.

Preliminary objections, which will be set forth herein,

to the petition for the appointment of viewers were filed

on behalf of Allegheny County’; similarly, preliminary

objections to the complaint in trespass and for an

accounting set forth herein, were filed by Solomon and

Teslovich and Ram Construction. The preliminary

objections filed in both actions were consolidated for

hearing because the factual basis for the claims

presented by the plaintiffs and the legal issues raised by

the facts, the resolution of which will contrul the

outcome of the actions, are substantially the same.

During the hearing on the preliminary objections the

parties stipulated to the facts which are presented below.

Plaintiffs’ decedent Mike Mazzaro acquired title to a

tract of land, which encompassed 104.085 acres and was

located in Findlay Township, Allegheny County,

Pennsylvania, by a deed executed on February 17, 1955

from grantor Cosgrove Coal Company. The description of

the property conveyed contained a clause which

expressly excepted and reserved to Cosgrove Coal, its

successors and assigns, all the coal, gas, oil, limestone

and other minerals underlying the described tract of

land.

* Sections 406 and 504 of the Eminent Domain Code, as amended, 26

P.S. §§1-406, 1-504, provide for preliminary objections to be the

exclusive manner of legally and factually testing the sufficiency of a

petition for the appointment of viewers alleging » de facto taking.

City of Philadelphia v. Airportels, 14 Pa. Cmwith. 617, 322 A.2d 727

(1974).

19a

Appendix—Opinion and Order of the Court of Common

Pleas of Allegheny County, Pennsylvania,

Entered October 30, 1981.

On March 4, 1958, the County Commissioners of

Allegheny County adopted a resolution authorizing the

County of Allegheny to acquire by condemnation 88.1+

acres of the 104.085 acre tract owned by plaintiffs’

decedent for the purpose of establishing and maintaining

thereon air navigation and terminal facilities pursuant to

the provisions of Article XXIV of the Second Class

County Code‘. On May 5, 1959, the Commissioners of

Allegheny County adopted a _ similar resolution

authorizing Allegheny County to acquire by

condemnation the remaining 15.536 acres of land of the

original tract of land owned by the decedent for air

navigation and terminal facilities.

Each resolution provided in relevant part:

“That the said Commissioners deem it advisable and

necessary to acquire by condemnation, certain land

situate in Findlay Township, Allegheny County,

Pennsylvania, hereinafter described, for the purpose

of establishing and maintaining thereon air

navigation and terminal facilities, and in connection

therewith to take private property and acquire title

thereto, in fee simple*, said property being owned

by Mike Mazzaro.”

A petition for appointment of viewers was filed by the

County of Allegheny through its Board of

Commissioners requesting the court to appoint a Board

of Viewers to ascertain and award just compensation ‘‘to

all persons’’* for their condemned property, and by order

of court dated May 4, 1961, then Judge O’Brien of this

* 16 P.S. §§5401-5408.

*Emphasis ours.

20a

Appendix—Opinion and Order of the Court of Common

Pleas of Allegheny County, Pennsylvania,

Entered October 30, 1981.

court appointed viewers and directed the same to view

the affected premises, to hold meetings as should prove

necessary, to hear all parties and witnesses, and to

award just compensation for the damages sustained as a

result of the improvement to the properties*. In addition,

Judge O’Brien directed the viewers to give all parties

notice as required and where notice was required by

publication to publish such notice in the Pittsburgh Post-

Gazette, the Pittsburgh Press and the Pittsburgh Legal

- Journal and to file a report with this court upon a

specific date.

The report of viewers was submitted on October 19,

1961 indicating the due notice required by law of the

time and place fixed for viewing the condemned property

was given‘*, that the viewers had heard the testimony of

the interested parties and their witnesses, and the

viewers had estimated the value of the condemned

property as of the date of the condemnation was $71,980.

No appeal from the award was taken. The award made

was not apportioned between Mazzaro and Cosgrove

Coal Company.

On September 20, 1965, a deed conveying the interest

of Kirk Industries, Inc.’ to Mike Mazzaro in all of the

*The proceedings initiated by the filing of the petition for the

appointment of viewers are docketed in this court at No. 1528 July

Term, 1961 and were introduced at the hearing on preliminary

objections as Exhibit 4.

* On May 16, 17 and 18, 1961, notice was published in the Pittsburgh

Press, Post-Gazette and Legal Journal informing all parties in interest

of the meeting of the board of viewers at which the parties might

appear.

"By certificate of amendment to the corporation's articles of

incorporation dated March 1, 1955 the name of Cosgrove Coal

Company was changed to Kirk Industries, Inc.

21a

Appendix—Opinion and Order of the Court of Common

Pleas of Allegheny County, Pennsylvania,

Entered October .30, 1981.

minerals, including coal, gas, oil and _ limestone,

underlying nine tracts of land in Allegheny County was

executed. Mike Mazzaro acquired the interest of Kirk

Industries in the minerals underlying the 104.085 acre

tract, referred to in the deed as Tract Four, which had

been condemned by the County through the deed

purporting to convey all of the mineral rights and

privileges in the tracts of land described “‘(t)ogether with

the appurtenances thereunto belonging and all the

estate, right, title, and interest, claim or demand

whatsoever of... (Kirk Industries) to have and to hold

the above-described property ...unto the party of the

second part, his heirs and assigns forever.’

On July 18, 1979, Solomon and Teslovich entered into

a contract with the Board of Commissioners of Allegheny

County for the grading, paving, drainage and lighting for

the extension of a taxiway, referrred to as Taxiway N-l,

at the Greater Pittsburgh International Airport. The

contract authorized the contractor to take possession of

the coal excavated in areas designated as “Borrow Area

B”, “Borrow Area D” and undercut area. Supplemental

specifications provided, in part:*

“.. pockets of coal may be encountered. The

Contractor may either remove this coal to the

designated waste area or the Contractor may take

*The deed was recorded in the Office of the Recorder of Deeds of

Allegheny County at Deed Book Volume 4310, page 104 and was

introduced as Exhibit 5. Specific reference to Tract 4 may be found at

page 106 while the language of the deed quoted may be found at page

110.

*The specifications concerning coal removal were introduced as

Exhibit 6.

22a

Appendix—Opinion and Order of the Court of Common

Pleas of Allegheny County, Pennsylvania,

Entered October 30, 1981.

possession of the coal and dispose of it off of airport

property at his expense.”

On July 18, 1979, Solomon and Teslovich assigned all of

its right, title, and interest in the contract to Ram

Construction and executed a written assignment to this

effect. The president of Ram Construction signed an

instrument accepting the assignment and agreeing to

assume and perform all of the duties and obligations to

be performed by Solomon and Teslovich under the

original contract. In the course of construction Ram

Construction removed coal underlying the 104.085 acre

tract.

As a result, plaintiffs filed the petition for the

appointment of viewers asserting, as the legal basis of

the claim, a taking by the County for which they would

be entitled to seek the appointment of viewers to assess

damages pursuant to Section 502(e) of the Eminent

Domain: Code"*, 26 P.S. §$1-502(e). Plaintiffs alleged the

contractual language of the supplemental specifications

providing for removal and disposal of minerals owned by

the estate of Mike Mazzaro, coupled with the

contractor’s actual removal and sale of the minerals,

constituted an exercise of dominion and control by

Allegheny County. The plaintiffs further alleged that by

such actions Allegheny County had taken and deprived

the estate of its ownership rights in the minerals so as to

cause a condemnation and taking of the rights, entitling

the plaintiffs to just compensation. The preliminary

'* 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

viewers . . . setting forth such injury.”

23a

Appendix—Opinion and Order of the Court of Common

Pleas of Allegheny County, Pennsylvania,

Entered October 30, 1981.

objections filed on behalf of Allegheny County asserted:

(1) plaintiffs failed to state a cause of action; (2) if a

taking occurred, the plaintiffs’ action is barred by the

statute of limitations; (3) the action should be dismissed

as plaintiffs should be estopped from denying title to the

minerals rested in Allegheny County; (4) the plaintiffs

are not entitled to bring the cause of action, claiming

laches; and (5) the allegations set forth in the petition are

insufficient as a matter of law to support a de facto

taking.

Plaintiffs alleged in the action in trespass that

repeated demands to cease removal of the minerals were

made to and ignored by defendants Solomon and

Teslovich and Ram Construction and that defendants

have sold large quantities of merchantable minerals and

have refused to account to the plaintiffs for such sale

and to pay the estate the value thereof. Plaintiffs further

alleged the defendants willfully and unlawfully invaded

the plaintiffs’ interest in the minerals by entering upon,

extracting and selling the coal.

The preliminary objections filed on behalf of Solomon

and Teslovich and Ram Construction asserted: (1) that

the court lacked jurisdiction to hear the action, claiming

the plaintiffs acquired only a claim against the County

for damages in an eminent domain proceeding; (2) by

demurrer, the complaint failed to state a claim of

ownership to the minerals because the claim is barred by

estoppel; (3) the complaint in trespass and for an

accounting failed to state a cause of action; and (4) the

complaint failed to state a cause of action against

Solomon and Teslovich in that it alleged the defendant

24a

Appendix—Opinion and Order of the Court of Common

Pleas of Allegheny County, Pennsylvania,

Entered October 30, 1981.

assigned all of its rights and duties under the contract to

Ram Construction Company.

The preliminary objections filed in each action are

before this court for disposition.

We note at the outset the resolutions of the Board of

County Commissioners a »pted March 4, 1958 and May

5, 1959 were adopted pursuant to the Second Class

County Code" prior to the enactment of the Eminent

Domain Code of 1964'*. Thus, the procedure to condemn

property is governed by the Second Class County Code

(herein County Code).

Article XXIV of the County Code, entitled

‘“‘Aeronautics’’"* grants the rights and authority to

establish, construct and provide for air navigation

facilities to the County. Section 5402(c) of Article XXIV

provides:

“The county may acquire by...condemnation

proceedings any land lying within its territorial

limits...which, in the judgment of the county

commissioners, may be necessary and desirable for

the purpose of establishing and maintaining air

navigation and terminal facilities .. ..”’

The proceedings for the condemnation of lands under

Article XXIV were to be conducted in the manner

provided under Article XXVI of the County Code,

entitled ‘“‘Eminent Domain and Injury to Property’’ and

" Act of 1953, July 28, P.L. 723, Art. I, §101 et seg., 16 P.S. §§3101-

6302,

** Act Special Sessions, June 22, 1964, P.L. 84, Art. I, Sec. 101, 26

P.S. §§5401-5408.

® of 1953, July 28, P.L. 623, Art. XXIV, §2401, 16 P.S. $§5401-

5408.

25a

Appendix—Opinion and Order of the Court of Common

Pleas of Allegheny County, Pennsylvania,

Entered October 30, 1981.

title acquired by virtue of condemnation proceedings was

title in fee simple". .

Section 5608 established the necessary procedure for

acquiring property by condemnation. Subsection (a)

states:'*

‘“(a) In case the board of commissioners or a

majority of them and the parties interested in the

land, property or material appropriated, injured or

destroyed by the county fail to agree upon the

compensation to be made for the land, property or

material so taken, injured or destroyed, upon

petition of such commissioners or a majority of

them or any person or parties interested and whose

land, property or material is affected thereby to the

court of common pleas of said county, the said court

shall appoint three viewers from the county board of

viewers, and appoint a time, not less than twenty

nor more than thirty days thereafter, when said

viewers shall meet and view the land, property or

material to be so appropriated, injured or

destroyed.”

As stipulated to by the parties, a petition for the

appointment of viewers was filed accordingly. The

appointed viewers were then required to “...give at

least ten days’ notice, by publication in one newspaper of

general circulation in the county once . . . of the time and

place of their first meeting, and...(to) give notice

thereof by handbills posted in conspicuous places in the

vicinity of the proposed public improvement.’’"*

* Act of 1953, July 28, P.L. 723, Art. XXIV, §2403, 16 P.S. $5403.

* Act of 1953, July 28, P.L. 723, Art. XX VI, §2608, 16 P.S. §5608.

Act of 1953, July 28, P.L. 723, Art. XXVI, §2608, 16 P.S. §5608(b).

26a

Appendix—Opinion and Order of the Court of Common

Pleas of Allegheny County, Pennsylvania,

Entered October 30, 1981.

The exhibits introduced at the hearing of the

preliminary objections indicate that notice by publication

had been properly given and, as previously noted, the

report of viewers indicated the due notice required by

law of the viewing was given.

The initial question which must be resolved is whether

Allegheny County acquired title to the underlying

minerals when it condemned in fee simple the property

held by plaintiffs’ decedent in 1958 and 1959. We

conclude Allegheny County did acquire the title to the

underlying minerals in 1958 and 1959.

The term ‘fee simple’’ has been defined as “‘(t)he

largest estate in real property that an owner can

have .... It is the unconditional ownership. It is the sum

total of all other estates, each of which is but a part of

the whole fee simple estate.” Ladner, Conveyancing in

Pennsylvania, Revised Fourth Edition, Volume I, Section

1.03(a), page 5.

The plaintiffs concede certain subsurface rights accrue

to a public authority acquiring title to property by

eminent domain, including the right of support; however,

plaintiffs argue the Pennsylvania case law recognizes

title to subsurface minerals are a separate estate in land

which may be held in fee simple and that, as a result, a

condemnation of property in fee simple may not evince

an intent to acquire mineral rights title to which has

been severed from the surface.

Plaintiffs further argue that at the time of the

condemnation of the 104.085 acre tract required a

condemnor to separately condemn a mineral estate which

had been severed from the surface.

27a

Appendix—Opinion and Order of the Court of Common

Pleas of Allegheny County, Pennsylvania,

Entered October 30, 1981.

The defendants agree that the law of Pennsylvania

recognized that while for some purposes the concept of a

fee simple estate in minerals was valid, the claim that

condemnation of the fee simple in land does not

encompass an interest in the underlying minerals, even

though the interest may be a fee simple, was not a viable

argument. In support thereof, the defendants cite the

Pennsylvania Commonwealth Court’s holding in

Commonwealth of Pennsylvania, Department of

Transportation v. Haydu, 1 Pa. Cmwlth. 561, 276 A.2d

346 (1971) that while the concept of a distinct and

separate fee simple title in minerals from the fee simple

ownership of the land is an important concept in the field

of mineral law, it should not be incorporated into the

field of eminent domain law.

In Commonwealth of Pennsylvania v. Haydu, the

Court was reviewing a lower court ruling that Section

507(a) of the Eminent Domain Code of 1964, Special

Session, June 22, P.L. 84, Art. I, Sec. 101, 26 P.S. §1-101

was not applicable in a case involving two fee simple

estates—one in the surface and the other in the coal—,

that the coal owners possessed a separate property, and

that the claims would be assessed independently and not

apportioned from an amount determined as the total

damages to the property. In reversing the lower court,

the Commonwealth Court held that the term

“condemned property” included all of the property as

defined by the surface, including an estate in sub surface

minerals.

In its opinion, the Commonwealth Court discussed at

length the case of Porter v. Commonwealth, 419 Pa. 596,

215 A.2d 646 (1966) in which the Supreme Court was

28a

Appendix—Opinion and Order of the Court of Common

Pleas of Allegheny County, Pennsylvania,

Entered October 30, 1981.

faced with and decided the question of the standing of a

fee simple in underlying minerals. The Commonwealth

Court, in support of its holding, stated:

“The appellee in Porter argued ... ‘it must be noted

that the appellee’s position is that it is immaterial

whether ..., the common mineral lessee, actually

owned the minerais in question in fee simple. Rather

the appellee’s contention is that it is common

ownership of the surface which is necessary.’ Its

conclusion was in part: “The doctrine of fee simple

ownership of minerals should be limited to the field

of mineral law from whence it derived and should

not be extended to the law of eminent domain where

it is neither practical of logical.’ "’

Commonwealth of Pennsyloania v. Haydu, supra, at 569.

The defendants acknowledge Commonwealth v. Haydu,

supra, involved the interpretation and application of the

Eminent Domain Code of 1964, which was not in effect

at the time the 104.085 acre tract was condemned but

argue the case stands as valid authority for the

proposition that, for eminent domain purposes, the

surface area of land and the underlying minerals are a

single property, although the surface and mjneral rights

may be separately owned in fee simple. We agree that

the analysis underlying and supporting this proposition

is no less a cogent approach under the 1937 Eminent

Domain Code than under the Eminent Domain Code of

1964.

As previously noted, the Legislature provided that title

acquired by virtue of a condemnation under the Second

29a

Appendix—Opinion and Order of the Court of Common

Pleas of Allegheny County, Pennsylvania,

Entered October 30, 1981.

Class County Code shall be a title in fee simple. In light

of this provision, as well as the language of the 1958 and

1959 resolutions which indicated the commissioners

intended to condemn and acquire the title to the

property described, and the accepted definition of the

term “fee simple’, and in recognition of the theory

underlying the Commonwealth Court’s holding in

Commonwealth v. Haydu, supra, we conclude as a matter

of law that the 1958 and 1959 resolutions adopted by the

county commissioners effected a condemnation of all the

interests in the 104.085 acre tract, including any interest

in the subsurface minerals.

The plaintiffs argue, however, that if a prior formal

condemnation was effected by the 1958 and 1959

resolutions and condemnation preceedings, their claim

for proceeds is not barred because the viewers failed to

comply with the notice provisions of the County Code

and because the notice thereof as required by law was

not given to Cosgrove Coal Company. The plaintiffs

admit notice by publication was given pursuant to the

provisions of the County Code but claim there is nothing

in the record to indicdte the property was posted or that

there was anything done to the property to put an owner

on notice of the condemnation prior to the construction

performed in 1979.

We do not agree the record is devoid of evidence the

viewers complied with the statutory requirements in the

County Code regarding notice. The condemnation

proceedings, docketed at No. 1528 July Term, 1961,

which were introduced as an exhibit in the hearing before

this court, revealed that a report signed by the viewers

30a

Appendix—Opinion and Order of the Court of Common

Pleas of Allegheny County, Pennsylvania,

Entered October 30, 1981.

stated the due notice, as required by law. of the time and

place fixed for the viewing was given. The required

notice included the posting of the handbills. From the

report of the viewers we may conclude that handbills had

in fact been posted, thus satisfying the statutory

requirements of notice and supporting a dismissal of the

plaintiffs’ claims.

The statutory requirements of notice direct the Board

of Commissioners to publish notice in the local

newspapers and to post notice of the condemnation on

the property involved. We cannot conclude that such

notice is constitutionally defective.

In Schroeder v. City of New York, 371 U.S. 208, 83

S.Ct. 279 (1962), the Supreme Court was presented with

the question of whether the City of New York deprived

the appellant of due process by failing to give adequate

notice of condemnation proceedings affecting property

owned on a New York river. The city had instituted

proceedings under the provision of the New York City

’ Water Supply Act providing that notice to be given to

affected landowners would be by publication in two

newspapers published in New York City and in two

public newspapers published in each county in which any

real estate laid out may be located and to post handbills

to be posted in the vicinity of the real estate to be taken.

The city caused notice to be published in two New York

City newspapers, in two newspapers published in another

county and posted notices along a river in the general

vicinity of the appellant’s premises. Guided by its earlier

decision in Mullane v. Central Hanover Trust Co., 339

U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), the Supreme

3la

Appendix—Opinion and Order of the Court of Common

Pleas of Allegheny County, Pennsylvania,

Entered October 30, 1981.

Court determined that the newspaper publications and

posted notices in. the circumstances presented in

Schroeder, supra, did not measure up to the quality of

notice required by the Due Process Clause of the

Fourteenth Amendment.

The Court noted that the general rule which had

emerged from Mullane, supra, was that notice by

publication was not enough with respect to a person

whose name and address were known or easily

ascertained and whose legally protected interests were

directly affected by the proceedings in question. In

Schroeder, no notice was posted anywhere on the

appellant’s property itself; the two county newspapers in

which publication was made were published in small

communities miles from the appellant’s property; the

notices were posted during a month when the appellant’s

premises were vacant; neither the newspaper

publications nor the posted notices contained the name

of the appellant or of any other affected property owner;

and, neither the publications nor posted notices

explained what action a property owner might take to

recover damages caused by the taking. The*Court laid

great emphasis on the fact that no sign was posted on

the appellant’s property or was ever seen by the

appellant and concluded the posting of the signs did not

constitute the personal notice the rule enunciated in

Mullane, supra, required.

In the present case, the published notices contained

the name of the owner of the property to be condemned

and that which defined the coal interest. As noted above,

the surface owner was also the grantee in the conveyance

32a

Appendix—Opinion and Order of the Court of Common

Pleas of Allegheny County, Pennsylvania,

Entered October 30, 1981.

of the property by Cosgrove Coal. We may conclude the

publication of the notice was adequate and when such

publication was accompanied by the posting of notice, as

the record would indicate in the present case, there is no

denial of due process.

Recognizing, however, the importance of the plaintiffs’

claim that the given notice did not afford the property

owner due process of law, we shall not limit our analysis

in the present action to the conclusion that the record

established proper notice was given according to the

statutory requirements.

Further analysis requires that we first determine

whether the plaintiffs are entitled to maintain

proceedings to recover damages for property taken by

the right of eminent domain. Generally, one who acquires

title to property subsequent to the time of taking is not

entitled to bring such an action. As the Pennsylvania

Supreme Court stated in Quade v. Columbia and Port

Deposit Railway Co., 233 Pa. 20, at 23-4, 81 A. 813

(1911):

“... damages arising by reason of taking belonged

to the owner at the time of appropriation and do not

pass to a subsequent vendee, in the absence of

anything to show such an intent: Losch’s Appeal,

109 Pa. 72. Such damages are a personal claim of

the owner of the property at the time the injury

occurred and do not run with the land or pass by

deed silent as to the damages resulting from such a

taking.”

Nee

33a

Appendix—Opinion and Order of the Court of Common

Pleas of Allegheny County, Pennsylvania,

Entered October 30, 1981.

In the instant case the deed, dated September 20,

1965, from Kirk Industries to Mike Mazzaro purported

to convey title to the mineral interests “(t)ogether with

. all the estate, right, title, and interest, claim or

demand whatsoever ... to have and to hold the ...

property ...."’ We conclude the language contained in

the deed effectively conveyed to Mazzaro whatever claim

in the mineral interests was held by Kirk Industries at

the time the deed was executed.

We have determined that, as a matter of law,

Allegheny County acquired the entire interest in the

104.085 acres in fee simple, including the underlying

mineral rights—whether or not the rights were

previously severed from the interest in the surface’’,

through the 1958 and 1959 resolutions.

The report of viewers indicated the viewers met on

May 26, 1961, viewed the property, and conducted a

hearing for the purposes of admitting the testimony of

the parties interested and their witnesses. The report

states:

“That having viewed said premises as aforesaid and

having heard all the testimony as to the value

thereof, submitted by the County of Allegheny, as

well as that of the claimant, the Viewers do now

estimate and determine that the value of said

property as condemned at the date of said

condemnation was SEVENTY-ONE THOUSAND

NINE HUNDRED EIGHTY and 0»1n0/100ths

"Thus, Allegheny County acquired the surface area, the underlying

right to support and the interest in the coal and other minerals

underneath the <urface.

34a

Appendix—Opinion and Order of the Court of Common

Pleas of Allegheny County, Pennsylvania,

Entered October 30, 1981.

($71,980.00) DOLLARS by reason thereof, resulting

from the establishment and enlargement of air

navigation and terminal facilities ....”

As noted above, the $71,980 compensation payment

was made to Mazzaro. Section 5623 of the County Code

provided":

“Upon the report of said viewers or any two of them

being filed in said court, any party interested may,

within maa days thereafter, file exceptions to the

same...

Exceptions and advertising were waived, however, by

Mazzaro and Allegheny County.

Under Section 5627" all claims for compensation were

deemed paid and satisfied upon payment of

compensation for property. It is evident from a reading

of the statute that the underlying purpose of the statute

is to assure that the condemnor pays 100% of the

damages caused by the -taking. See Garella v.

Redevelopment Authority, 413 Pa. 181, 196 A.2d 344

(1964). The taking by eminent domain is a single

transaction which forms the basis for an action to

recover all of the damages resulting from the taking. For

the resulting damages there can be but one assessment.

To hold otherwise would create a method of splitting up

the damages resulting from a single taking and on

ensuing multiplicity of viewers proceedings to assess

damages for each interest in the property condemned.

This result is contrary to legal policy and cannot be

supported by the provisions of the County Code or by

“ Act of 1953, July 28, P.L. 723, Art. XXVI, $2623, 16 P.S. $5624.

* Act of 1953, July 28, P.L. 723, Art. XXVI, §2627. 16 P.S. §5627.

Rae

ry 7

35a

Appendix—Opinion and Order of the Court of Common

Pleas of Allegheny County, Pennsylvania,

Entered October 30, 1981.

the prior and current statutes governing eminent domain

procedure. We find, as a matter of law, that the award

made, in the amount of $71,980, was compensation for

the damages resulting from the taking of the

property—which, by definition, included the mineral

rights.

Assuming, arguendo, Kirk Industries did not have

proper notice of the viewers proceedings, any claim held

by Kirk for damages to the mineral rights would not be

against the condemnor Allegheny County. Inasmuch as

the County made payment of the compensation award,

Kirk Industries bad a claim against Mazzaro, the

recipient of the proceeds, for its share of the award for

the value of its mineral interest.

When Kirk Industries transferred its purported

interest in coal to Mazzaro together with any claim it

had to have and to hold the property, it transferred its

claim against Mazzaro for a share of the proceeds.

Consequently, the claim was extinguished by merger™.

Accordingly, defendant Allegheny County’s preliminary

objections, in the nature of a demurrer, to the petition

for an appointment of viewers will be sustained.

The preliminary objections, in the nature of a

demurrer, filed on behalf of the defendants in the action

for trespass and for an accounting, will be sustained in

light of our determination that the resolutions of 1958

and 1959 effected a taking of the coal by the county at

that time.

* In view of the foregoing analysis, we need not discuss the issue of

whether or not the statute of limitations had run.

36a

Appendix—Opinion and Order of the Court of Common

Pleas of Allegheny County, Pennsylvania,

Entered October 30, 1981.

IN THE COURT OF COMMON PLEAS

of Allegheny County, Pennsylvania

Civil Division

CAROL M. CAPTLINE and EQUIBANK, N.A.., as

Co-Executors of the Estate of Mike Mazzaro,

Plaintiffs,

Vv.

SOLOMON & TESLOVICH, INC., and

RAM CONSTRUCTION CO., INC.,

Defendants.

No. GD 81-03197

Issue No.

Code 009

ORDER

SILVESTRI, J.

AND NOW, this 30th day of October, 1981, following

a hearing and upon consideration of the briefs submitted

by the parties and the stipulations agreed to by the

parties, and a review of the record, it is hereby

ORDERED that the preliminary objections filed by

Solomon and Teslovich, Inc. and Ram Construction Co.,

eso Se

37a

Appendix—Opinion and Order of the Court of Common

Pleas of Allegheny County, Pennsylvania,

Entered October 30, 1981.

Inc. to action in trespass and for an accounting are

hereby sustained and the complaint filed by the plaintiffs

at No. GD 81-03197 is hereby dismissed.

BY THE COURT,

SILVESTRI, J.

Eo die, exceptions noted and bill sealed.

BY THE COURT,

SILVESTRI,J. (Seal)

38a

Appendix—Opinion and Order of the Court of Commor

Pleas of Allegheny County, Pennsylvania,

Entered October 30, 1981.

IN THE COURT OF COMMON PLEAS

of Allegheny County, Pennsylvania

Civil Division

CAROL M. CAPTLINE and EQUIBANK, N.A.,

as Co-Executors of the Estate

of Mike Mazzaro,

Plaintiffs,

Vv.

COUNTY OF ALLEGHENY,

Defendant.

No. GD 81-02291

Issue No.

Code

ORDER

SILVESTRI, J.

AND NOW, this 30th day of October, 1981, following

a hearing and upon consideration of the briefs submitted

by the parties and the stipulations agreed to by the

, parties, and a review of the record, it is hereby

ORDERED that the preliminary objections filed by the

39a

Appendix—Opinion and Order of the Court of Common

Pleas of Allegheny County, Pennsylvania,

Entered October 30, 1981.

County of Allegheny to the petition for an appointment

of viewers are hereby sustained and the petition filed by

the plaintiffs at No. GD 81-02291 is hereby dismissed.

BY THE COURT

SILVERTRI, J.

Eo die, exceptions noted and bill sealed.

BY THE COURT

SILVESTRI, J. (Seal)

40a

Order of the Commonwealth Court of Pennsylvania

entered May 20, 1983, denying

application for reargument

IN THE

COMMONWEALTH COURT OF PENNSYLVANIA

CAROL M. CAPTLINE and EQUIBANK N.A..,

Co-Executors of the Estate of

MIKE MAZZARO, Deceased,

COUNTY OF ALLEGHENY,

CAROL M. CAPTLINE, Co-Executor of

the Estate of MIKE MAZZARO, Deceased,

Appellant.

NO. 2865 C.D. 1981

CAROL M. CAPTLINE and EQUIBANK N.A..,

Co-Executors of the Estate of

MIKE MAZZARO, Deceased,

Vv.

SOLOMON & TESLOVICH, INC. and

RAM CONSTRUCTION CO., INC.,

CAROL M. CAPTLINE, Co-Executor of

the Estate of MIKE MAZZARO, Deceased,

Appellant.

NO. 5 T.D. 1982

4la

Appendix—Order of the Commonwealth Court

of Pennsylvania, entered May 20, 1983,

denying application for reargument.

ORDER

NOW, May 20, 1983, appellants having filed an

application for reargument, appellees, pursuant to Pa.

R.A.P. 2545, sahll file an answer (original and nine (9)

copies) to said application for reargument, which answer

shall be filed and served on or before May 31, 1983. Said

answer shall be filed in the office of the Chief Clerk in

Ho-vrisburg.

PAUL S. LEHMAN

Paul S. Lehman, Senior Judge

Certified From The Record

May 23 1983

Francis C. Barbush

Chief Clerk

$y;

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.