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Home My WebLink About95-01077 , nJ '~r)~ '-L' H'" ~ ,; ~ -;:t: . ' ~ 8 , i r -1 .. 0- , a. '-....J ;:~, , t~r( !,i r " r, , /'. ;iJ~ , 'ft.\,;, . J~ ,,1_ , ":r"' t,r- i .- ~ ('- C' C - (' I ~" ,(' < j i" 'I , :,,' , ':: ,',:, :,," " ::' ' " , , "":: "<', :' ,< ,:,:<' J,: ':i, ,'" , " ';; ",' " ' , . ;:):': ::)J<:::';:;); ':~', ,,>,;',' , ' ,'/ ,i" ;, ;::;' ,: .. .:~:;:,i:/:'_I.::",;, "~.{;?'~'.'~.,'..'. ' '., .'''::.- ,i:':,~;,' , ";0,, ," ':>"'~', ' ", ' ' ' ,~; ,;"":::Jjic;~ , .:ti,:;:0 ,;".'.;;': "'{",e:t'<;'" ',..,' '::.' :,: ,,:':.';,' , ,i.,-";, ,.:,?,: .",:i;',.:.: .. '.-' : ,';..:' ,',., : "l:', "',: '"',''' , ,,"; ,: :,;, C;, ," ',,-' ," -< ;~:', "',, "i',,:"': .',:,'" ','.. :' " " " -:',~:;::;i""" " " ::' ,," ' ' .' '," rl" D ,,' ',,, '",,:, ::0\; "'1', ',','::' ,- \, ",',." ",Y",'-,'!' < '" ,,:'1 ,,-', L "'I,:";' ',',r ), .. ,,' , , :i:; :' ,... ," ;:}:.,' ' " ' ;.. "" ,,:::'::'; .. 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" ,,' ~~ ;:", '~:"~''';~~~i ,," ';", ",F'''''''''J'J-" ", '~"':,'" ,',"::':' ':;, ': ",' .. ,.,' >":~>:: ' ,',' , .'::' ''':< , ",..', ;' "~':\'::..;i{;'; .:,::'..:" ' '.':;. :'"''':'';;:'':''' , ," ' ,,' .., , "..,.."" '." :: :::;~:,: ~;i " ',;,' ",;: " ',." , " .. .. ... , ~i ,+ 'J, .-j;'r , F!" _ ~',(:.ii k , ~~ " 'r" .' :;<~ , " ,,' ~,.;'~i' '. ''':;. ; ',;: ;:"" ,!,' " ; .. ::' " \1.. " l "Ii -.:jV:t ('~.-,.,~r , .,;,;~.~f. -~. . . ' :<,~{,'~tc . ,',. :,~-. . " , ';5 '.\7,." -~-' ~:::~'.;:::'" ~:'.. 'i,~.;:,~j/ ::;"~.~.".\} \ " '~'-. ~ "i'~ " ~ -. f'rll~ ',.' '':,~ ,', ',',"''..:J . ," "'~ ~~7~ """,, 'c'-';'" ".: " ..;\ '<~;:~ ::. :.; ~ ',~ " :: ~'i.. , ,;~~;8' ..;I;ll '''::",: Resolution was adopted by CondemnDr to condemn and appropriate easements and to enter upon, use and occupy lands described therein as being owned at the time of condemnation by the Condemnees, As a result thereof, hearings were conducted by the Pennsylvania Public Utility Commission which, on December 15, 1994, issued a final order approving the application, and made a finding that the proposed exercise of the power of eminent domain by the Condemnor is necessary and proper for the service of the public, 4, The purpose of said condemnation is to appropriate easements over, across and under said Property to the extent required for right-of-way to be presently used for the construction, reconstruction, operatiDn and maintenance of the West Shore-Carlisle TransmissiDn Line, for the transmission and/or distribution of electric light, heat and power, or any of them, including such poles of wODd and/or other appropriate materials and all such wires, fixtures, and apparatus as may be necessary for the proper and efficient construction, operation and maintenance of said Transmission Line, 5, The nature of the title acquired in and to said Property is a permanent easement with a perpetual right of the Condemnor, its successors and assigns to construct, reconstruct, operate, renew, replace, relocate, add to, and maintain the facilities constituting the said Transmission Line, including, without limitation, poles, towers, guys, cables, wires, fiber optics, fixtures and apparatus necessary for the convenient transactiDn of the business of the Condemnor for the transmission and/or distribution of electricity, on, under, over or across the said right-of-way together with: (1) the right, as often as necessary, to cut down any tress or brush and to remove any buildings or other things from said right-of-way; (2) the right to cut Docum.., N: 1621JJ,1 down and/or trim any trees within twenty-five (25') feet on either or both sides of the edge of the said right-of-way which may endanger the safety of, interfere with the use of, or be a . menace to any facilities or structures which may now or in the future be maintained upon said right-of-way; and (3) the right of ingress and egress to, from, upon and over the said right-of- way fDr the construction, reconstruction, operation and maintenance of said Transmission Line, 6, Pursuant to said Declaration of Taking, CondemnDr duly selected, appropriated and condemned a permanent easement and perpetual right-of-way, more fu\1y described in Exhibit A hereto attached and made part hereof, 7, The name and addresses of a\1 Condemnees known to Petitioner to have an interest in the said property and the nature of the interest are as fo\1ows: Estate of Max C, Hempt c/o Hempt Bras" Inc, 205 Creek Road Post Office Box 278 Camp Hill, PA 17011 Fee Simple Martha D, Hempt 941 Limekiln Road New Cumberland, PA 17070 Fee Simple 8, Condemnor and Condemnees have been unable to agree upon just compensation to be paid, Documtn, N: /61 UJ.I ALL THAT CERTAIN tract or parcel of land situate in silver spring Township, cumberland County, Pennsylvania, being more particularly described on Plan of West Shore-carlisle line showing electria line right-af-way over property ot MaX C. He~pt and Hartha D. Hempt, husband and wife, dated september 1', 1993, prepared by pennsylvania Power' Light Company, (PP'L Drawing No. C230896) recorded in the CUmberland county Recorder ot Deeds Office on February 28, 1995, being more particularly described as follows: BEGINNING at a point located along the southerly property line of Max C. and Martha D. Hempt. said line also being the northerly right-at-way line of conrail Railroad Tracts at the dividing line between lands now or formerly ot Matilda A. Kinnich, et al., (Deed Book C-6, page 409) and Tract 1 of lands now or formerly of Hax C. Hempt and Hartha D. Hempt; thence along said dividing line, North fifty-two degrees twenty-seven minutes sixteen seconds West (N 52. 27' 16" W) a distance of ~hirty-seven (37') teet more or less to a point; thence through the southern portion of Tract Nos. 1, 2 and 3, now or formerly of Max C. Hempt and Martha D. Hempt, North seventy-three degrees thirty-two minutes torty-four seconds East (N 73" 32' 44" E) a distance of two thousand eight hundred sixty-six (2,866') feet more or less ~o a point; thence continuing along the southern portion of Tract .' No, 3, North seventy-nine degrees twenty-eight minutes ritty-nine seconds East (N 79. 28' 59" E) a distance ot two hundred eighty- nine teet more or less to a point; thence along the northerly right-at-way 11ne of tho Contrail Railroad Tracts (the southern property line of Hempts), the following four courses and distances: (1) south seventy-three degrees thirty-two minutes .., forty-tour seconds West (5 73. 32' 44" W), one thousand two hundred three (1,203') feet more or less; (2) South seventy-six degrees torty-nine minutes seventeen seconds West (5 760 49' 17" wI, one hundred seventy-five (175') feet more or less; (3) South sixty-eight degrees fifty-seven minutes twenty-five seconds West (5 680 57' 2511 W), one hundred twenty-fivo (125') feet more or less; and (4) South seventy-three degrees thirty-two minutes forty-four seconds West (5 730 32' 44" WI. one thousand six hundred thirty-one (1,631') teet to a point, said point being the place of BEGINNINC. CONTAININC 2.02 acres more or less. 'r&~,UG'SJOZZ EXHIBIT A . . CERTIFICATE OF SERVICE I, Robert E, Yeller, Esquire, Df the lirm of Metzger, Wickersham, Knauss & Erb, counsel for the Condemnees, Estate of Max C, Hempt and Martha D, Hempt, hereby certify that on the day of October, 1999, I served a true and correct copy of Petition for Appointment of Board of Viewers upon counsel for the CondemnDr, by depositing the same in the U,S, Mail, postage prepaid, addressed as follows: Stephen], Dzuranin, Esquire WIX, WENGER & WEIDNER Post Office Box 845 Harrisburg, PA 17108-0845 METZGER WICKERSHAM KNAUSS & ERB By Documen, N: /61/JJ./ >. 1/', '- ( r , ...:.: I i'~. .--;. lu (..~ c::" _.) (); I --~ ~~~ (..I: ~ .: ~'.. : :j '.1_.1 <:.. '.:' (rJr (""1 - j f~~~:.," ''-' " " _...1 G: 1 ~-' '--. -- r:; (~ /";.', CO ,", I " '., Ci ' , C". {j , . , " " .. ~ " ~I'- ..~-.. '! . ,-,. ~~! ~ ~ ~~ ..,., ~ ~,.- 'i ""'<- . iE "J~>~" ~ \ ~ ~,' ~~"~ \S5 ~ N .......I,~.~J:;.. :,:';~::i ~ \) - ;~~~ ~ 0: .-~ :J ~~ :.:;c' ~ ~ ~ .~ !~ ~ i ~ ~ ~ ~ ~a I J ~ ~ ~ ~ ~ ~~ ~~~~~m ~~ ~ :!Iihm " . , ~ ~ ('-. IV) r6 f'1:l '0 ~\ I ~ I c ~ ~ uJ 0 :z f- .0 ,... w 0 ...... w _ _ ~ to.... ~ ~ VI ;! :: ~ I- t:l ~:z " ~(5"~ ~ ~~~tj~l~ UJ~V1iE~ ~ OO~O~ ;:: :z~0!;;. - uJ(;!:2~ :::.. ell ::> ? 0 .. . to '" X ii1 _ It ~ ~ , . e' - , . IN RE: CONDEMNATION OF 2.02 ACRES ON LAND OF MAX C. HEMPT AND MARTHA D. HEMPT BY THE PENNSYLVANIA POWER & LIGHT COMPANY TO ACQUIRE EASEMENTS FOR THE CONSTRUCTION, OPERATION AND MAINTENANCE OF AN ELECTRIC TRANSMISSION LINE IN SILVER SPRING : TOWNSHIP, CUMBERLAND COUNTY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY . . . . ?5-/0/1 t!~4~ IN REM NO.: DECLARATION OF TAKING TO THE HONORABLE, THE JUDGES OF THE SAID COURT: 1. This Declaration of Taking, based on the provisions of pennsylvania Business corporation Law of 1988, as amended (the "PBCL"), 15 Pa. C.S.A. S1511, respectfully represents that the Condemnor is the Pennsylvania Power & Light company. The address of the Condemnor is Two North Ninth street, Allentown, Pennsylvania 18101-1179. 2. Pennsylvania Power & Light company, as Condemnor, is authorized by the provisions of PBCL, cited above, to take, acquire and condemn property in fee simple or such lesser estate or interest as Condemnor shall determine. 3. The within condemnation has been authorized by the public utility commission according to the PBCL, 15 Pa.C.S.A. S1511(C). On October 27, 1993, a Resolution was adopted by the Pennsylvania Power & Light Company for the within Condemnation to condemn and appropriate easements, and to enter upon, use and occupy lands herein described as being owned at the time of condemnation by the Condemnees. As a result thereof, hearings were conducted by the Public utility commission which, on December 15, 1994, issued a final order approving the application, and made a finding that the proposed exercise of the power of eminent domain by the Pennsylvania Power & Light Company is necessary and proper for the service of the public. 4. The purpose of this condemnation is to appropriate easements over, across and under said lands to the extent required for right of way to be presently used for the construction, reconstruction, operation and maintenance of the West Shore-Carlisle Transmission Line, for the transmission and/or distribution of electric light, heat and power, or any of them, including such poles of wood and/or other appropriate materials, and all such wires, fixtures and apparatus as may be necessary for the proper and efficient construction, operation and maintenance of said Transmission Line. 5. A description of the property condemned sufficient for its identification is attached hereto as Exhibit A (the "property"), hereby indicating that the condemnation is totally within silver spring Township, Cumberland county, Pennsylvania. 6. The plans showing the property condemned, a reduced copy of which is attached hereto as Exhibit B, are on the same day being lodged for record and filed in the Office for the Recorder of Deeds in Cumberland county, in accordance with 2 Section 404 of the Eminent Domain Code of 1964, as amended (the "Code"), 26 P.S. 51-404. 7. The nature of the title acquired in and to said Property is a permanent easement with a perpetual right of the Pennsylvania Power & Light Company, its successors and assigns to construct, reconstruct, operate, renew, replace, relocate, add to, and maintain the facilities constituting the said Transmission Line, including, without limitation, poles, towers, guys, cables, wires, fiber optics, fixtures and apparatus necessary for the convenient transaction of the business of Pennsylvania Power & Light Company for the transmission and/or distribution of electricity, on, under, over or across the said right of way together with: (1) the right, as often as necessary, to cut down any trees or brush and to remove any buildings or other things from the said right of way; (2) the right to cut down and/or trim any trees within twenty-five (25') feet on either or both sides of the edge of the said right of way which may endanger the safety of, interfere with the use of, or be a menace to any facilities or structures which may now or in the future be maintained upon said right of way; and (3) the right of ingress and egress to, from, upon and over the said right of way for the construction, reconstruction, operation and maintenance of said Transmission Line. a. The payment of just compensation in this matter is secured by the filing of appropriate bonds pursuant to section 403(a) of 3 ALL THAT CERTAIN tract or parcel of land situate in silver spring Township, Cumberland County, Pennsylvania, being more particularly described on plan of West Shore-Carlisle line showing electric line right-of-way over property of Max C. Hempt and Martha D. Hempt, husband and wife, dated September 15, 1993, prepared by Pennsylvania Power & Light Company, (PP&L Drawing No. C230896) recorded in the Cumberland county Recorder of Deeds Office on February 28, 1995, being more particularly described as follows: BEGINNING at a point located along the southerly property line of Max C. and Martha D. Hempt, said line also being the northerly right-of-way line of Conrail Railroad Tracts at the dividing line between lands now or formerly of Matilda A. Minnich, et al., (Deed Book C-6, page 409) and Tract 1 of lands now or formerly of Max C. Hempt and Martha D. Hempt; thence along said dividing line, North fifty-two degrees twenty-seven minutes sixteen seconds West (N 520 27' 16" W) a distance of thirty-seven (37') feet more or less to a point; thence through the southern portion of Tract Nos. 1, 2 and 3, now or formerly of Max C. Hempt and Martha D. Hempt, North seventy-three degrees thirty-two minutes forty-four seconds East (N 730 32' 44" E) a distance of two thousand eight hundred sixty-six (2,866') feet more or less to a point; thence continuing along the southern portion of Tract No.3, North seventy-nine degrees twenty-eight minutes fifty-nine seconds East (N 790 28' 59" E) a distance of two hundred eighty- nine feet more or less to a point; thence along the northerly right-of-way line of the contrail Railroad Tracts (the southern property line of Hempts), the following four courses and distances: (1) South seventy-three degrees thirty-two minutes forty-four seconds West (S 730 32' 44" W), one thousand two hundred three (1,203') feet more or less; (2) South seventy-six degrees forty-nine minutes seventeen seconds West (S 760 49' 17" WI, one hundred seventy-five (175') feet more or less; (3) South sixty-eight degrees fifty-seven minutes twenty-five seconds West (S 680 57' 25" WI, one hundred twenty-five (125') feet more or less; and (4) South seventy-three degrees thirty-two minutes forty-four seconds West (S 730 32' 44" WI, one thousand six hundred thirty-one (1,631') feet to a point, said point being the place of BEGINNING. CONTAINING 2.02 acres more or less. PP&L,LEG-SJD22 EXHIBIT A ,. III Ul :r l'l N 8 J.I8IHX3 .... .. ~ :' ~i~~~~ u rc;~at!t:.._~ ~ I I I I I I f IS Ii ~w",J~"!? ~ '''*'~i!:;of5 'blll~lol~"J;j ~~~~~~~ ~ \I d g~ ~~ Rf:l o~~ ~ij,. i!~ gaOl .d~ ~ ~ :? .... c. :s: uJ J: d .. , '\ ~~ ~ Ii:-< 5::& J: / tE / I!l / ~I ( ~ ) ~ ~ / :s: a /' i! I I~ /", _~_.~ \ 'ifll! \' " 'j3 8~8~~ ,;.t ~JI'i i i~~ 83 · ~~ . ~ . u a: GI c ~ ~ sg i=.J :I. ~R: "'.J i~ ~~ d ~! ~~ ~E ..~ ~ ! ; ;: ~ 0 0 '"' ~"' I! .. ~ i 0 i , f N W :: . L ~ , ~ . - " @ 0 ... BOND NO. 500756074 CONDEMNATION BOND KNOW ALL MEN BY THESE PRESENTS, That PENNSYLVANIA POWER & LIGHT COMPANY, a corporation duly organized and existing under the laws of the Commonwealth of Pennsylvania, having its principal office at Two North Ninth Street, Allentown, PA 18101, as Principal, and AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, a corporation duly organized and existing under the laws of the State of Pennsylvania and authorized to become surety on bonds of the nature of the present obligation, having its principal office at CNA plaza, Chicago, IL 60685, as Surety (hereinafter called "Obligors"), are held and firmly bound unto MAX C. HEMPT AND MARTHA D. HEMPT (hereinafter called "Obligees"), owners of the land described in a condemnation proceeding brought by PENNSYLVANIA POWER & LIGHT COMPANY in the amount of SIX THOUSAND AND NO/100 DOLLARS ($6,000.00) and all costs which may be legally assessed against said PENNSYLVANIA POWER & LIGHT COMPANY by reason of the entry upon, use, occupation, condemnation and appropriation of said land to the extent required for the right of way described in said proceeding for the construction, erection, operation and maintenance of electric lines for the transmission and/or distribution of electric light, heat and power, or any of them, including such poles of wood and/or other appropriate material, and all such wires, fixtures and apparatus as may be necessary for the proper and efficient construction, erection, operation and maintenance of said lines, to be paid to the said Obligees, or their certain attorneys, heirs, executors, administrators, successors or assigns to which payment well and truly to be made, the said Obligors do hereby bind themselves, their and each of their successors and assigns, jointly and severally, firmly by these presents. Sealed with their corporate seals and duly executed this 26th day of January, 1995. WHEREAS, PENNSYLVANIA POWER & LIGHT COMPANY, the Obligor herein, in the exercise of the right of eminent domain being thereunto duly authorized, has condemned and appropriated or is about to condemn and appropriate a right of way for the transmission and distribution of electricity on, under and across premises of Max C. Hempt and Martha D. Hempt, parcel No. 33, Tract 1, located in Silver spring Township, Cumberland County, as described in Deed Book "S," Volume 12, Page 135; Tract 2, located in Silver Spring Township, Cumberland County, as described in Deed Book "C," Volume 6, Page 34; and Tract 3, located in Silver Spring Township, Cumberland County, as described in Deed Book "L," Volume 23, Page 339, more particularly described in a Declaration of Taking on the West Shore-Carlisle l38KV line, to the extent required for the construction, erection, operation and maintenance of electric lines for the transmission and/or distribution of electric light, heat and power, or any of them, including such poles of wood and/or other appropriate material, and all such wires, fixtures and apparatus as may be necessary for the proper and efficient construction, erection, operation and maintenance of said lines and, EXH1B1'l' C American 'Casu&lty Company of Reading, Pennsylvania C'NA For All the Commitments You Make' OlflcII/Chlcago. illinois POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY.IN.FACT Know All Manby lha.. P,..ants, That AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA. a corporation duly organized and existing under the laws of the Commonweallh of Pennsylvania. and having Its principal office In the Clly of Chicago. and State of Illinois, does hereby make. constitute and appoint John R. Manner I nil. Harrv C. Rosenberg. 0 I an" C. R" I I. Sal Iv A, Shaw. Diane M, DIMartino, Kathleen M. Ziobro. Kathervn G, Schneider, Teresa R, Del 80nlfro. Individual Iv ~ 8ala Cynwyd, Pennsylvania its true and lawful Attorney,in,Fact with full power and authority hereby conferred te sign. seal and execute in its behalf bonds, undertakings and other obligatory Instruments of similar nature - In Unlimited Amounts - and to bind AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA thereby as fully and to the same extent as If such Instruments were signed by the duly authorized officers 01 AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA and all the acts of said Allorney, pursuant to the authority hereby given are hereby rallfled and confirmed, This Powe, of Attorney Is made and executed pu,suant to and by authority of the following By,Law duly adopted by the Board 01 Directors of the Company: "Article VI-Execution of Obligations and Appointment of Attorney.ln.Fact Section 2, Appointment of Attorney,ln,lac!. The Chairman of the Board of Directors, the President or any Executive. Senior or Group Vice President may, from time to time. appoint by written certificates attorneys,ln,fact to actin behalf of the Company In the execution of pOlicies of Insurance, bonds. undertakings and other obligatory Instruments of like nature, Such attorneys,ln.fact. subject to the limitations set forth In their respective certificates of authority shall have full power to bind the Company by their signature and execution of any such Instruments and to attach the seal of the Company thereto, The President or any Executive. Senior or Group Vice President may at any time revoke all power and authorlly previously given to any attorney.ln,fac!." This Power of Attorney Is signed and sealed by facsimile under and by the authority of the fOllowing Resolution adopted by the Board of Directors of the Company at a meeting duly called and held on the 17th day of February, 1993: "Resolved. that the signature of the President or any Executive, Senior or Group Vice President and the seal of the Company may be affixed by facsimile on eny power of attorney granted pursuant to Section 2 of Article VI of the By. Laws, and the signature of the Secretary or an Assistant Secretary and the seal of the Company may be affixed by facsimile to any certificate of any suCh power and any power or certificate bearing such facsimile signature and seal shall be valid and binding on the Company, Any such powe, so executed and sealed and cenlfled by certificate so executed and sealed shall with ,espect to any bond or undertaking to which it Is attached. continue to be valid and binding on the Company," In Wllne.. Wheraof, AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA has caused thase presents to be slglllld by its Group Vice President and its corporate seal to be hereto affixed this '30th day of November, 19 ~, AMERICAN CASUAL CO NY OF READING, PENNSYLVANIA ~-~\\ 11'-.., · \\ M'II I,.~ . M, C, V nnahme Group Vice Preslden!. On this 30th day of Nove' 19~, before me personally came M. C, Vonnahme, to me known, who, being by me duly sworn, did depose and say: that he re In the Village of Darlen, State of Illinois; that he Is a Group Vice President of AMERICAN CASUALTY COMPANY OF READING, PENNS LVANIA, the corporation described In the which executed the above Instrument: that he knows the seal 01 said Corporation: that the seal affixed to the said Instrument Is such corporate seal: that II was so affixed pursuant to authority given by the Board 01 Directors 01 said corporation and that he signed his name thereto pursuant to like authority, and acknowledges same to be the act and deed of said corporation, State of Illinois } ss County of Cook (j, CERTIFICATE I, Robert E, Ayo, Assistant Secretary 01 AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, do certify tha e Power of Afforney herein above set forth Is still In force. and further certify that Section 2 01 the Anlcle VI of the By, Laws of the Company and the Resolution 01 the Board of Directors, set forth In said Power of Attorney are still In force, In testimony whereof I have hereunto subscribed my name and affixed the seal of the said Company this 26th dayof January ,19~, 8.23142.0 ASSistant Secretary, INV NO G-57422-E , . Amerlflln Clfiualty' ~mpany of Reading, Pilnnsylvanla .., CNA Fo,AU lhoCon,mUlUf'nlOYuu Make' STATEMENT OF ASSETS AND LIABILITIES DECEMBER 31, 1993 Assets 1993 Admitted Assets (680,539) 561,718,514 44,509,038 279,307,847 o o 125,694,218 370,864 486,474 5,192,079 48,155,420 29,054,747 7,515,636 61.340.029 ~ Cash $ Short term investments (principallY U. S. Government obligations) United States government obligatiDns Other public bonds Industrial and miscellaneous bDnds Preferred stocks CDmmon stocks Df affiliated cDmpanies Other common stocks Real Estate Premiums and agents' balances in CDurse of cDllection Premiums, agents' balances and installments booked but deferred and not yet due Accrued retrospective premiums Accrued interest dividends and rents Other assets Liabilities Unearned premium reserve Reserve for loss and loss adjustment expenses Reserve for taxes, licenses and fees (including federal incDme taxes) Other liabilities $ 84,366,145 844,237,633 4,761,044 10.572.194 ,$ 943.937 , 016 Total Liabilities SurDlus Capital paid up ($5 par value) Shares authorized: 2,000,000, issued: 840,000 Surplus $ 4,200,000 214.527.311 $ 218,727,311 ~ Surplus as Regards Policyholders TDtal Failure of items to add to totals shown is due tD rounding. State of Illinois) ) ss County of CODk ) On this 12th day of April, 1994, before me came M. C. VDnnahme and G, R, Hobaugh, knDwn tD me personally tD be the Group Vice President and the Assistant Secretary, respectively, of the American Casualty Company of Reading. Pennsylvania and being fully sworn, certify and attest that the foregoing statement is a true and correct statement Df the assets and liabilities of the sai~pany as of the date shDwn in the statement. ~A/ 1-.- _/ ~ G. R. Ho~augh, Assista~S~c;;tary M. C. Vonnahm, oup Vice-President Subscribed and sworn tD before me this ~{Id?v iL;4ttu 0, S0800,AILOI N tary Publi c 12th day of April, 1994, D75691064.D3P/1320357 ~ ..... .11.... ..........A:......... ....~ 4 "OFFICIAL SEAL" ~ Nancy M. CentlIJe ~ ~ ~ofary Publi~. Slate Dr Illinois ~ ~ nlf Comnllsslon EXPires~6/97 .... ." "".. .................... ~ ...v.... 1J"] ~. en .r.?: - ..t"./".. ::a:= UI~~. ,~1 0.- (,) .....~ .~~ N c.:c~(~"'~ ,...t ~~ ::: l~~ '..;: ..- ;', ::,' ~',~\'1~ l. 'I r~..:~ ::-l ,.; \~~ \.; \..n ,-'.:.:.:"-j:"- __ I":;,) o:::t ......t,... ... "" :s::. n N~ I i ~~~~~i~~ ~ . ~ ~~ ~~ ~~oi ~"~ ~I '~Bhnlhi i ~ ~ ~ ~ ~ uJ 0 :z I- <ll ^ "' 0 ...... "' - _ ~ ltl "- ~ ~ VI 0\ ~ ~ I- 0 ~;z &l 0$<6"~ ;; .J~~e~l~ J.S.l u.I \I) -:z ['~ uJ Z :t tt z r:: Cl~,,"o", ~ :z t:; ~ I;; ": - ~ < :z 2 ~ <ll => o .. . ,^ VI X .. it _ 0: ~ i 't .. . .. ... ' IN RE: CONDEMNATION OF 2.02 ACRES . IN THE COURT OF COMMON PLEAS . OF LAND OF MAX C. HEMPT AND . OF CUMBERLAND COUNTY, . MARTHA D. HEMPT BY THE . PENNSYLVANIA . PENNSYLVANIA POWER & LIGHT . . COMPANY TO ACQUIRE EASEMENTS . NO. 95-1077 CIVIL TERM . FOR THE CONSTRUCTION, OPERATION AND MAINTENANCE OF AN ELECTRIC . . TRANSMISSION LINE IN SILVER SPRING . IN REM . TOWNSHIP, CUMBERLAND COUNTY AFFIDAVIT OF SERVICE stephen J. Dzuranin, Esquire, being duly sworn according to law, deposes and says that he is an attorney at law duly authorized to practice law in the County of Cumberland, Commonwealth of Pennsylvania; that on March 8, 1995 he sent a true and correct copy of the Declaration of Taking, properly endorsed, to the Condemnees, Max C. Hempt and Martha D. Hempt, by Certified Mail, No. Z-322-733-098, postage prepaid, return receipt requested, to, the Condemnees' last known address; and that the Condemnees received the Declaration of Taking on March 13, 1995, pursuant to the return receipt card, which is attached hereto and marked Exhibit A. 17108-0845 Attorneys for Condemnor, Pennsylvania Power & Light company Sworn to and sub!9ribed before me this ~ day of March, 1995. ~~~~ Notary Public My Commis (SEAL) Nr:;~l.-::~;"'.ll L"::~l 8 R :A.,/. t i:.t3ry C\Jtb: t-i:~; -",,;~ L'.1-:d'.lil_";,,'1f~t'1 t. i:' (, ' . . ~...."t I~. 1!l91 .:j " IN REI IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CONDEMNATION OF 2.02 ACRES OF LAND OF MAX C. HEMPT AND MARTHA D. HEMPT BY THE PENNSYLVANIA POWER , LIGHT COMPANY TO ACQUIRE EASEMENTS FOR THE CONSTRUCTION, OPERATION AND MAINTENANCE OF AN ELECTRIC TRANSMISSION LINE IN SILVER SPRING TOWNSHIP, CUMBERLAND COUNTY IN REM NO. 95-1077 CIVIL CERTIFICATE OF SERVICE AND NOW, this day, I, Robert E. Yetter, Esquire, of Metzger, WiCkersham, Knauss & Erb, attorneys for Max C. Hempt and Martha D. Hempt, hereby certify that I served Request of Condemnee, Max C. Hempt and Martha D. Hempt, for Production of Documents and Tangible , Thing~Addressed to Condemnor, Pennsylvania Power & Light Company ....J this day by depositing the same in the United states mail, postage prepaid, in Harrisburg, Pennsylvania, addressed to: Theresa M. Brennan, Esquire Pennsylvania Power & Light Company Two North Ninth street Allentown, PA 18101 steven J. Dzuranin, Esquire Wix, Wenger & Weidner 508 North Second street P.O, Box 845 Harrisburg, PA 17108-0845 // L ter, Esqu re Robe Dated: August 21, 1995 ..,.. en - ~ C!J ::> -= :r~ <", ....-........ U. (,""'l (:.:. ~t (,,)%(,.]:'1 &:0'0.... l~ ;:r. ;~ {; . ~ .: ;.) ,", .' _1,....- IH ~-... .~. J: ::I~~:~~ :;> u,'"' '" ::c c... N "" ~ ~ co '- M t;: r Ch '-,3;!l; ~ :c 'J='" ':5;: --= :j~ 0 fr en ';~ I ,_I"" ~ C!> ;:r.:lQ "I ~ ;TI 0.. - ""' ::: l:5 LO => en (J t I I ~ , .~-_... ' to-,- IN RB: . . IN THB COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . . CONDEMNATION OF 2.02 ACRES OF LAND OF MAX C. HEMPT AND MARTHA D. HEMPT BY THE PENNSYLVANIA POWER , LIGHT COMPANY TO ACgUIRB EASEMENTS FOR THE CONSTRUCTION, OPERATION AND MAINTENANCE OF AN ELECTRIC TRANSMISSION LINE IN SILVER SPRING TOWNSHIP, CUMBERLAND COUNTY : IN REM NO. 95-1077 CIVIL CERTIFICATE OF SERVICE AND NOW, this day, I, Robert E. Yetter, Esquire, of Metzger, WickerSham, Knauss & Erb, attorneys for Max C. Hempt and Martha D. Hempt, hereby certify that I served Interrogatories of Condemnee, Max C. Hempt and Martha D. Hempt, Addressed to Condemnor, Pennsylvania Power & Light Company this day by depositing the same in the United states mail, postage prepaid, in Harrisburg, Pennsy~y,ania, addressed to: Theresa M. Brennan, Esquire Pennsylvania Power & Light company Two North Ninth street Allentown, PA 18101 steven J. Dzuranin, Esquire Wix, Wenger & Weidner 508 North Second street P.O. Box 845 Harrisburg, PA 17108-0845 ~ C~~ Robe t E. Dated: August 21, 1995 IN RE: CONDEMNATION OF 2.02 ACRES ON LAND OF MAX C. HEMPT AND MARTHA D. HEMPT BY THE PENNSYLVANIA POWER & LIGHT COMPANY TO ACQUIRE EASEMENTS FOR THE CONSTRUCTION, OPERATION AND MAINTENANCE OF AN ELECTRIC TRANSMISSION LINE IN SILVER SPRING TOWNSHIP, CUMBERLAND COUNTY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 95-1077 CIVIL TERM IN REM CERTIFICATE OF SERVICE AND NOW, this day, I, Stephen J. Dzuranin, Esquire, of wix, Wenger & Weidner, attorneys for Pennsylvania Power & Light Company, hereby certify that I served Request of Condemnor, Pennsylvania powe; & Light Company For Production of Documents Addressed to Conde~nee, Max C. Hempt and Martha D. Hempt, this day by depositing the same in the United States mail, postage prepaid, in Harrisburg, Pennsylvania, addressed to: Max C. Hempt and Martha D. Hempt c/o Robert E. Yetter, Esquire Metzger, Wickersham, Knauss & Erb P.O. Box 93 Harrisburg, PA 17108-0093 Respectfully submitted, By,,' "< ,,;:;)/ V\~ / Ste Jhen J. D I raJ' n, Esquire I I.D. # 52653,1 / , 508 North Second Street .-/ Post Office Box 845 HarriSburg, PA 17108-0845 (717) 234-4182 Attorneys for pennsylvania Power & Light company & WEIDNER DATE: August 7, 1996 ~ fr. co ?-: !B M ,?; .. :::l_ ce 8~ ... ~ Co ~ ':1>; Co ~.!.~ cr. 0\ SO) u. I r5~ u:;W '-'l if :;:, me.. ~ ~ ~~ \.0 :::l en <..> . On October II, 1995, Silver Spring Township enacted an new zoning ordinance and zoning map which rezoned the 83,8 acres to General Industrial (G-2), On September 29, 1996, Condemnees sold that 83,8 acres to Fry Communications,lnc, for $2,698, 299.00, A Board of View was conducted before the Viewers, William A, Duncan, R. Fred Hefelfingerand Elmer R, Ritter, on June 18,200 I, A hearing on the issue of valuation was also conducted on the same day, at which testimony was taken from Lester G, Conner, Expert Witness for Condemnee; Gerald Hemp.. Condemnee; Egbert J, Langendijk, Expert Witness for Condemnor; and Barry Gebhart, Property Management for Condemnor, Langendijk, in his report dated May 2, 1996, estimated just compensation in the amount of$4,OOO,OO, It is his opiniDn that the highest and best use, both before and after the taking, for Tract No, I containing the 83,8 is industrial and the highest and best use for Tract No.2 containing 122.8 acres and Tract No, 3 containing 11,1 acres is a horse breeding operation, Lester G, Connor, Expert for Condemnees, estimatesjust compensation in the amount of $33,200,00. It is his opinion that the highest and best use of the 83,8 is General Industrial (G-2) and the balance of the land to be residential. Since the time of the condemnation. Condemnee Max C, Hempt has become deceased and is now represented by the executors of his estate, George F, Hempt and Gerald Hempt. Docum,.tM,' 17HJJO . II. PROPOSED FINDINGS OF FACT 1. The highest and best use of the 83,8 acre tract of land subject to Condemnor's taking is for general industrial use, (Appraisal and Testimony of Lester G, Conner), 2, The highest and best use of the remaining two tracts of land subject to Condemnor's taking is for residential development. (Appraisal and Testimony of Lester G, Conner), 3, The value of the 83,8 acre tract of land before the taking was $26,000 I acre, (Appraisal and Testimony of Lester G, Conner), 4, The value of the remaining two tracts of land before the taking was $10,000 I acre, (Appraisal and TestimDny of Lester G. Conner). 5, Gerald Hempt. Condemnee. valued the entire property at $65.000 I acre, (Testimony of Gerald Hemp!), 6, After the taking, Hempt Farms could not use the land subject to the taking in its present operation, (Testimony of Gerald Hempt), 7, No buildings can be constructed, nDr crops grown, nor horses grazed on the land subject to the taking due to the presence of Condemnor's power lines, (Testimony of Lester G, Conner and Gerald Hempt) 8, If any of the lots involved were to be sold, the existence of the condemned land and Condemnor's power lines on it would reduce the value of the overaUtract by an amount greater than the value of just the acreage subject to the taking, (Testimony of Lester G, Conner) Oocu,..n, M: I 78JJU . III. PROPOSED CONCLUSIONS OF LAW I. Condemnee is entitled to just compensation for the taking of his property, 26 P.S, ~ 1.601. 2, "Just compensation shall consist of the difference between the fair market value of the condemnee'sentire property interest immediately before the condemnation and as unaffected thereby and the fair market value of his property interest remaining immediately after such condemnation and as affected thereby, and such other damages as are provided in [the Eminent Domain Code)." 26 P,S, ~ 1.602, 3, Fair market value may be determined by considering the highest and best use of the property, 26 P,S. ~1-603, 4, Condemnee is entitled to compensation for expenses incurred an amount up to $500, 26 P,S, $1-610, 5, Condemnee, without further qualification, is competent to give testimony as to just compensation, 26 P,S, ~1-704, 6, The sale of one tract of the actual land subject to a taking of an easement by eminent domain, nineteen months after the taking, is relevant and admissible to establish the value of the property prior to the time of the taking, 26 P,S, ~ 1-705, See also RedeveloDment Authoritv of Harrisburl! v, Brown, 35 Pa, Cmwlth, 4] 5,386 A.2d 1052, 1056 (1978), 7, Condemnees are entitled to damages for delay in payment of just compensation. 26 P,S, ~1-6] I. ~m<nIN,178jJ~1 . 8, The rate at which Condemnees' delay damages are calculated is the prevailing commercial rate, HUl!hes v, Commonwealth of Pennsvlvania. DeDI. of Transportation, 514 Pa, 300. 523 A,2d 747 (1986). 9, The delay damages due to Condemnees, using the applicable commercial loan rates, as provided under Pa,R.C,P, 238 are: fill!: Rm 1995 8,5% 1996 8.5% 1997 8.25% 1998 8,5% 1999 7,75% 2000 8,5% 2001 9,5% TOTAL DELAY DAMAGES Docu....' N.. /78534. / Delav Damal!es for Year $ 1,914,34 $ 2,312,00 $ 2,244,00 $ 2,312.00 $ 2,108,00 $ 2,312,00 $ 1.605,34 Calculated using a ,00023 daily rate multiplied by 306 days, (3/1 - 12/31) Calculated using a ,00026 daily rate multiplied by 227 days, (1/1 - 8/15), $14,807.68 Ca]culatiDns based upon $27,200 outstanding just compensation. ($33,200 in total compensation minus $6,000 adjusted compensation already paid.) . CERTIFICATE OF SERVICE AND NOW, this /?/" day of August, 2001, I. Steven p, Miner, of Metzger. Wickersham. Knauss & Erb, P,C,. attorneys for Condemnees, hereby certify that 1 served the foregoing PrDposed Findings of Fact and Conclusions of Law this day by depositing the same in the United States mail, postage prepaid, addressed to: Stephen], Dzuranin Wix. Wenger & Weidner 508 North Second Street P,O, Box 845 Harrisburg. P A 17108-0845 By: {JL-(51L-- StevehP, Miner. &quire Dated: August -1.i. 2001 /)ocumtnlll' /11"J.l1 IN RE: CONDEMNATION OF 2,02 ACRES: IN THE COURT OF COMMON PLEAS ON LAND OF MAX C, HEMPT AND OF CUMBERLAND COUNTY MARTHA D, HEMPT BY THE PENNSYLVANIA POWER & LIGHT COMPANY TO ACQUIRE EASEMENTS NO.: 95-1077 CIVIL TERM FOR THE CONSTRUCTION, OPERATION AND MAINTENANCE OF AN ELECTRIC TRANSMISSION LINE IN SILVER SPRING IN REM TOWNSHIP, CUMBERLAND COUNTY CONDEMNOR'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW AND NOW, comes the Condemnor, PPL Electric Utilities Corporation, by and through Its attorney, Wlx, Wenger & Weidner and, In conformance with the request of the Board of View in the above- captioned matter, flies this Proposed Findings of Fact and Conclusions of Law, PROPOSED FINDINGS OF FACT 1, PPL Electric Utilities Corporation (Ilk/a! Pennsylvania Power & Light Company) ("PPL" or "Condemnor") is a corporation duly organized and existing under the laws of the Commonwealth of Pennsylvania, 2, PPL was and Is authorized by the provisions of the Pennsylvania Business Corporation Law of 1988, as amended, 15 Pa,C,S,A, 9 1511 (the "PBCL") to take, acquire, and condemn property in fee simple or such lesser estate or interest as the Condemnor shall determine. 3, On March 1, 1995, pursuant to the provisions of the PBCL, PPL condemned an easement over certain property of Max C, and Martha D, Hempt (the "Condemnees"), as such property Is Identified in the Declaration of Taking filed In the Instant matter (the "Condemnation"), The total amount of the easement area Is 2,02 acres (the "Condemned Right of Way") 4, On October 27,1993, a Resolution was adopted by the PPL for the said condemnation to condemn and appropriate easements, and to enter upon, use and occupy lands described in the Declaration of Taking, 5, As a result of said Resolution, hearings were conducted by the Pennsylvania Public Utility Commission (the "PUC") and on December 15,1994, the PUC issued a final order approving the application, and made a finding that the proposed exercise of the power of eminent domain by the PPL Is necessary and proper for the service of the public, 6, The condemnation was authorized by the PUC according to the PBCL, 15 Pa,C.S,A, ~ 1511 (c), 7, The purpose of the condemnation was to appropriate easements over, across and under certain lands to the extent required for a right of way to be used for the construction, reconstruction, operation and maintenance of the PPL West Shore Transmission Line (the "Transmission Line"), for the transmission ancllor distribution of electric light, heat, and power, or any of them, Including such poles of wood ancllor other appropriate materials, and all such wires, fixtures and apparatus as may be necessary for the proper and efficient construction, operation, and maintenance of said Transmission Line, 8, The description of the property condemned Is set forth on Exhibit A attached to the Declaration of Taking and Is located totally within Silver Spring Township, Cumberland County, Pennsylvania, and Is identified on the plan attached thereto as Exhibit 8, a copy of which is attached hereto as Condemnor's Exhibit 1 for ease of reference, 9, At the time of the Condemnation, Max C, and Martha D, Hempt were the fee simple owners of the Condemned Right of Way and the tracts of land of which it is a part, 10, The nature of the title acquired by PPL Is a permanent easement with a perpetual right of PPL, its successors and assigns to construct, reconstruct, operate, renew, replace, relocate, add to, and maintain the facilities constituting the said Transmission Line, including, without limitation, poles, towers, guys, cables, wires, fiber optics, fixtures and apparatus necessary for the convenient transaction of the business of PPL for the transmission and/or distribution of electricity, on, under, over, or across the said right of way together with: (1) the right, as often as necessary, to cut down any trees or brush and to remove any buildings, or other things from the said right of way; (2) the right to cut down ancllor trim any trees within twenty-five (25') feet on either or both sides of the edge of the said right of way which may endanger the safety of, Interfere with the use of, or be a menace to any facilities or structures which may now or in the future be maintained upon said right of way; and (3) the right of Ingress and egress to, from, upon and over the said right of way for the construction, reconstruction, operation and maintenance of said Transmission Line, 11, On April 28, 1995, the Condemnor paid to the Condemnees the sum of Six Thousand and 00/1,00 ($6,000.00) Dollars as Estimated Just Compensation, 12, The Condemnees did not file a Petition for Appointment of Viewers until October 14,1999, 2 13.0n October 19,1999, the Court of Common Pleas appointed William Duncan, Esquire, Fred Hefelflnger and Elmer Ritter as the Board of Viewers, 14, After certain scheduling conflicts were resolved on both sides, a View and Hearing were conducted on June 18, 2001, 15, The Condemned Right of Way Is located at the Southern boundary of three separate tracts of land, 16. The first tract ("Tract 1") consists of a total of 83,6 acres and was zoned for General Industrial use at the time of the View and was zoned for Agricultural use at the time of the Condemnation, The portion of the Condemned Right of Way along this Tract 1 contains a total of ,8125 acres, 17, The second tract ("Tract 2") consists of a total of 122,8 acres and was zoned for Agricultural use at the time of the View and was zoned for Agricultural use at the time of the Condemnation, 18, The third tract ("Tract 3") consists of a total of 11,1 acres and was zoned for Agricultural use at the time of the View and was zoned for Agricultural use at the time of the Condemnation, 19, The portion of the Condemned Right of Way along Tracts 2 and 3 contains a total of 1,2075 acres, 20, Tracts 2 and 3 have been used as a horse breeding farm for decades, 21, The Condemned Right of Way consists of a strip of land along the Southern boundaries of the Tract and approximately thirty (30') feet wide, 22, The electric Transmission Line is located entirely on the neighboring railroad property, not in the Condemned Right of Way, 23, The rear yard setback requirement for the General Industrial zone in Silver Spring Township is fifty (50') feet In Sliver Spring Township. 24. The rear yard setback requirement in an Agricultural zone In Silver Spring Township Is thirty-five (35') feet. 25, The Condemned Right of Way will continue to be useable by the property owners subject to the nonexclusive easement of PPL. 26, The electric transmission line that existed before Installation of the current Transmission Line was not sufficient to service Industrial use on the properties. 3 27, The current electric Transmission Line is sufficient to service industrial use to the properties, 28, Neither at the time of the Condemnation, nor subsequent thereto, were there any plans to rezone Tracts 2 or 3 for any other use other than agricultural, 29.lf Tracts 2 and 3 are to be developed, a rezoning of the property will be necessary. 30,lf Tracts 2 and 3 are to be developed, substantial development costs will be incurred that will be considered in any purchase of the property, 31. The highest and best use of Tract 1 before and after the taking was Industrial development. 32, Tract 1 currently utilizes a railroad spur over the Condemned Right of Way for use of the current Industrial plant on Tract 1, 33, The amount of property interest that was taken by the taking of the Condemned Right of Way was an easement, which is substantially less than the taking of fee simple interest in property, 34, The fair market value of Tract 1 immediately before the Condemnation and as unaffected thereby was $925,000,00, 35, The fair market value of Tract 1 immediately after the Condemnation and as affected thereby is $922,752,50, 36, The total diminution of value from the Condemnation of the portion of the Condemned Right of Way on Tract 1 is $2,247,50, 37, The fair market value of Tracts 2 and 3 immediately before the Condemnation and as unaffected thereby was $845,000.00. 38, The fair market value of Tracts 2 and 3 immediately after the Condemnation and as affected thereby is $843,094,96, 39. The total diminution of value from the Condemnation of the portion of the Condemned Right of Way on Tracts 2 and 3 is $1,905,04. 40, The total difference between the fair market value of the entire properties immediately before the Condemnation and as unaffected thereby and immediately after the Condemnation and as affected thereby is $4,153,00, summarized as follows: 4 FMV FMV Difference Before Condemnation After Condemnation Tract 1 $925,000,00 $922,752,50 $2,247,50 Tracts 2&3 ~845,OOO,OO $843.094,96 ~1,905,04 Totals $1,700,000.00 $1,765,847,00 $4,153,00 41, The amount of compensation paid by the Condemnor, to the Condemnee Is greater than the value of the property taken by the condemnation, Therefore, no further compensation is owing from the Condemnor, CONCLUSIONS OF LAW 1, PPL properly flied the Declaration of Taking to acquire the Condemned Right of Way by the power of eminent domain, 2, The property Interest condemned was an easement over a strip of land at the Southern boundary of the individual Tracts, 3, An easement is a substantially lesser estate In land than a fee simple interest. 4, The interest of the Condemned property Condemned was a nonexclusive easement and the Condemnees are able to continue to use the land for uses that do not otherwise Interfere with the access to and from the Transmission Line that has been placed on the neighboring railroad bed, 5, The highest and best use of Tract 1, both before and after the Condemnation Is Industrial, 6, The highest and best use of Tracts 2 and 3, both before and after the Condemnation is Agricultural, 7, The fair market value of the Condemnee's property interest Immediately before the Condemnation and as unaffected thereby was $1,770,000,00 8, The fair market value of the Condemnee's property interest immediately after the Condemnation and as affected thereby is $1,765,847,00, 5 ,. III III . 01 ~ ~ - :t .,: n. ~ \OJ :t Cl '\ 2~ ... I>~ ~:r :t M / if / dJ (/ ~ ) ~ ~ / :i B ;I sf 1/ fa /~\,\~~:~G \ ll:fie-" fJi~ -<l J~I~f~~ g! ~ I Ii ~ ,%lI ~ l I .(V,l tfll~ t g~.; U5. ;~ '1 a~ ~ u N a: III ) 1 ~1q14x3 .,~ouwapuo~ u ~! ., :I~~ .....r :1~ '" .~J:""':J" u u .rnNJ:I!C"'~~ i~ 2 I' I to; too:; ., I " I ~ nit Ii ~"'..ll~? 15", ~ii;~i:;af5 o~~ .........!;t~I'i!:l ~l:I~ ......, , "'10 ~7" blIoJt"'il..,. 20~ Z%Z~"'f)1I) ISw ee1?€l1IOO d5 ~ .. N iJ ~ ~ :911 _oJ ..... ;I. -~ L ~g 1~ ~t; iB ~! i~ lf~ ...~ ~ c /; . . ., . c c .;c' . -, . , i .. :r " .. .. . " i i w , . ~ .. ~ ~ .. . I ! , : @ .., -0 '" IN RE: CONDEMNATION OF 2,02 ACRES: IN THE COURT OF COMMON PLEAS ON LAND OF MAX C, HEMPT AND : OF CUMBERLAND COUNTY MARTHA 0, HEMPT BY THE PENNSYLVANIA POWER & LIGHT , COMPANY TO ACQUIRE EASEMENTS : NO,: 95.1077 CIVIL TERM FOR THE CONSTRUCTION, OPERATION AND MAINTENANCE OF AN ELECTRIC : TRANSMISSION LINE IN SILVER SPRING : IN REM TOWNSHIP, CUMBERLAND COUNTY CERTIFICATE OF SERVICE I hereby certify that the foregoing Condmenor's Proposed Findings of Fact and Conclusions of Law and Supporting Authority was sent by first class, postage prepaid mall this day to the following: Steven p, Miner, Esquire Metzger Wickersham 3211 North Front Street P,O, Box 5300 Harrisburg, PA 17110-0300 William A, Duncan, Esquire 1 Irwin Row Carlisle, PA 17013 Mr. R, Fred Hefelfinger 247 Baltimore Street Carlisle, PA 17013 Mr, Elmer Ritter 712 S. Market Street Mechanlcsburg, PA 17055 WIX, ~ER & WEIDNER B'/' ~. /'Step n J, Dz ;' , 508 orth See v P,O, Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Date: August 14, 2001 IN RE: CONDEMNATION OF 2,02 ACRES IN THE COURT OF COMMON PLEAS ON LAND OF MAX C, HEMPT AND OF CUMBERLAND COUNTY MARTHA D, HEMPT BY THE PENNSYLVANIA POWER & LIGHT COMPANY TO ACQUIRE EASEMENTS : NO.: 95-1077 CIVIL TERM FOR THE CONSTRUCTION, OPERATION AND MAINTENANCE OF AN ELECTRIC TRANSMISSION LINE IN SILVER SPRING : IN REM TOWNSHIP, CUMBERLAND COUNTY CONDEMNOR'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW AND NOW, comes the Condemnor, PPL Electric Utilities Corporation, by and through Its attorney, Wlx, Wenger & Weidner and, In conformance with the request of the Board of View in the above- captioned matter, files this Proposed Findings of Fact and Conclusions of Law, PROPOSED FINDINGS OF FACT 1, PPL Electric Utilities Corporation (f/k/a! Pennsylvania Power & Light Company) (.PPL" or .Condemnor") is a corporation duly organized and existing under the laws of the Commonwealth of Pennsylvania, 2, PPL was and Is authorized by the provisions of the Pennsylvania Business Corporation Law of 1988, as amended, 15 Pa,C,S,A, ~ 1511 (the .PBCL") to take, acquire, and condemn property In fee simple or such lesser estate or Interest as the Condemnor shall determine, 3, On March 1, 1995, pursuant to the provisions of the PBCL, PPL condemned an easement over certain property of Max C, and Martha D, Hempt (the .Condemnees"), as such property Is identified in the Declaration of Taking filed in the Instant matter (the "Condemnation"). The total amount of the easement area is 2,02 acres (the .Condemned Right of Way") 4, On October 27, 1993, a Resolution was adopted by the PPL for the said condemnation to condemn and appropriate easements, and to enter upon, use and occupy lands described in the Declaration of Taking. 5, As a result of said Resolution, hearings were conducted by the Pennsylvania Public Utility Commission (the .PUC") and on December 15,1994, the PUC Issued a final order approving the application, and made a finding that the proposed exercise of the power of eminent domain by the PPL is necessary and proper for the service of the public, 6, The condemnation was authorized by the PUC according to the PBCL, 15 Pa,C.S,A, ~ 1511 (c), 7, The purpose of the condemnation was to appropriate oasements over, across and under certain lands to the extent required for a right of way to be used for the construction, reconstruction, operation and maintenance of the PPL West Shore Transmission Line (the "Transmission Line"), for the transmission and/or distribution of electric light, heat, and power, or any of them, Including such poles of wood and/or other appropriate materials, and all such wires, fixtures and apparatus as may be necessary for the proper and efficient construction, operation, and maintenance of said Transmission Line, 8, The description of the property condemned is set forth on Exhibit A attached to the Declaration of Taking and Is located totally within Silver Spring Township, Cumberland County, Pennsylvania, and is identified on the plan attached thereto as Exhibit B, a copy of which is attached hereto as Condemnor's Exhibit 1 for ease of reference, 9, At the time of the Condemnation, Max C, and Martha D, Hempt were the fee simple owners of the Condemned Right of Way and the tracts of land of which It is a part, 10, The nature of the title acquired by PPL Is a permanent easement with a perpetual right of PPL, its successors and assigns to construct, reconstruct, operate, renew, replace, relocate, add to, and maintain the facilities constituting the said Transmission Line, including, without limitation, poles, towers, guys, cables, wires, fiber optics, fixtures and apparatus necessary for the convenient transaction of the business of PPL for the transmission and/or distribution of electricity, on, under, over, or across the said right of way together with: (1) the right, as often as necessary, to cut down any trees or brush and to remove any buildings, or other things from the said right of way; (2) the right to cut down and/or trim any trees within twenty.five (25') feet on either or both sides of the edge of the said right of way which may endanger the safety of, interfere with the use of, or be a menace to any facilities or structures which may now or in the future be maintained upon said right of way; and (3) the right of ingress and egress to, from, upon and over the said right of way for the construction, reconstruction, operation and maintenance of said Transmission Line, 11, On April 28, 1995, the Condemnor paid to the Condemnees the sum of Six Thousand and 00/1,00 ($6,000,00) Dollars as Estimated Just Compensation, 12, The Condemnees did not file a Petition for Appointment of Viewers until October 14,1999, 2 13,On October 19,1999, the Court of Common Pleas appointed William Duncan, Esquire, Fred Hefelflnger and Elmer Ritter as the Board of Viewers, 14, After certain scheduling conflicts were resolved on both sides, a View and Hearing were conducted on June 18, 2001, 15, The Condemned Right of Way is located at the Southern boundary of three separate tracts of land. 16, The first tract ("Tract 1") consists of a total of 83,6 acres and was zoned for General Industrial use at the time of the View and was zoned for Agricultural use at the time of the Condemnation, The portion of the Condemned Right of Way along this Tract 1 contains a total of ,8125 acres, 17, The second tract ("Tract 2") consists of a total of 122,8 acres and was zoned for Agricultural use at the tjme of the View and was zoned for Agricultural use at the time of the Condemnation, 18, The third tract ("Tract 3") consists of a total of 11,1 acres and was zoned for Agricultural use at the time of the View and was zoned for Agricultural use at the time of the Condemnation, 19, The portion of the Condemned Right of Way along Tracts 2 and 3 contains a total of 1,2075 acres, 20, Tracts 2 and 3 have been used as a horse breeding farm for decades, 21, The Condemned Right of Way consists of a strip of land along the Southern boundaries of the Tract and approximately thirty (30') feet wide, 22. The electric Transmission line is located entirely on the neighboring ral/road property, not In the Condemn-ed Right of Way, 23, The rear yard setback requirement for the General Industrial zone In Silver Spring Township Is fifty (50') feet in Silver Spring Township, 24, The rear yard setback requirement In an Agricultural zone in Silver Spring Township is thirty-five (35') feet. 25, The Condemned Right of Way will continue to be useable by the property owners subject to the nonexclusive easement of PPl, 26, The electric transmission line that existed before Installation of the current Transmission Line was not sufficient to service industrial use on the properties, 3 27, The current electric Transmission Line is sufficient to service industrial use to the properties, 28, Neither at the time of the Condemnation, nor subsequent thereto, were there any plans to rezone Tracts 2 or 3 for any other use other than agricultural. 29,If Tracts 2 and 3 are to be developed, a rezoning of the property will be necessary. 30,If Tracts 2 and 3 are to be developed, substantial development costs will be Incurred that will be considered in any purchase of the property, 31. The highest and best use of Tract 1 before and after the taking was Industrial development. 32, Tract 1 currently utilizes a railroad spur over the Condemned Rjght of Way for use of the current industrial plant on Tract 1, 33. The amount of property Interest that was taken by the taking of the Condemned Right of Way was an easement, which is substantially less than the taking of fee simple Interest in property, 34, The fair market value of Tract 1 Immediately before the Condemnation and as unaffected thereby was $925,000.00. 35, The fair market value of Tract 1 immediately after the Condemnation and as affected thereby is $922,752,50, 36, The total diminution of value from the Condemnation of the portion of the Condemned Right of Way on Tract 1 is $2,247,50, 37. The fair market value of Tracts 2 and 3 Immediately before the Condemnation and as unaffected thereby was $845,000,00, 38, The fair market value of Tracts 2 and 3 Immediately after the Condemnation and as affected thereby is $843,094,96. 39, The total diminution of value from the Condemnation of the portion of the Condemned Right of Way on Tracts 2 and 3 Is $1,905,04, 40. The total difference between the fair market value of the entire properties immediately before the Condemnation and as unaffected thereby and immediately after the Condemnation and as affected thereby Is $4,153.00, summarized as follows: 4 FMV FMV Difference Before Condemnation Aiier Condemnation Tract 1 $925,000,00 $922,752.50 $2,247,50 Tracts 2&3 ~5.000.00 $843,094,96 11,905,04 Totals $1,700,000,00 $1,765,847.00 $4,153.00 41, The amount of compensation paid by the Condemnor, to the Condemnee is greater than the value of the property taken by the condemnation. Therefore, no further compensation is owing from the Condemnor, CONCLUSIONS OF LAW 1, PPL properly filed the Declaration of Taking to acquire the Condemned Right of Way by the power of eminent domain, 2. The property interest condemned was an easement over a strip of land at the Southem boundary of the individual Tracts, 3, An easement is a substantially lesser estate in land than a fee simple interest. 4. The Interest of the Condemned property Condemned was a nonexclusive easement and the Condemnees are able to continue to use the land for uses that do not otherwise Interfere with the access to and from the Transmission Line that has been placed on the neighboring railroad bed, 5, The highest and best use of Tract 1, both before and after the Condemnation Is Industrial. 6, The highest and best use of Tracts 2 and 3, both before and after the Condemnation Is Agricultural. 7, The fair market value of the Condemnee's property Interest immediately before the Condemnation and as unaffected thereby was $1,770,000,00 8, The fair market value of the Condemnee's property interest Immediately after the Condemnation and as affected thereby is $1,765,847,00, 5 IN RE: CONDEMNATION OF 2,02 ACRES: IN THE COURT OF COMMON PLEAS ON LAND OF MAX C, HEMPT AND : OF CUMBERLAND COUNTY MARTHA 0, HEMPT BY THE PENNSYLVANIA POWER & LIGHT , COMPANY TO ACQUIRE EASEMENTS : NO,: 95.1077 CIVIL TERM FOR THE CONSTRUCTION, OPERATION AND MAINTENANCE OF AN ELECTRIC : TRANSMISSION LINE IN SILVER SPRING : IN REM TOWNSHIP, CUMBERLAND COUNTY CERTIFICATE OF SERVICE I hereby certify that the foregoing Condmenor's Proposed Findings of Fact and Conclusions of Law and Supporting Authority was sent by first class, postage prepaid mall this day to the following: Steven P. Miner, Esquire Metzger Wickersham 3211 North Front Street P,O, Box 5300 Harrisburg, PA 17110-0300 William A, Duncan, Esquire 1 Irwin Row Carlisle, PA 17013 Mr. R. Fred Hefelfinger 247 Baltimore Street Carlisle, PA 17013 Mr, Elmer Ritter 712 S, Market Street Mechanicsburg, PA 17055 Date: August 14, 2001 ~ ~ l.LI 0 Z i- .. o ::l 0 ~~~~~ ij f'~~~ ~~ CEl<o"':; ,,, ~ S lrl t:l ~ I;!" l.LI :z .., Ii::Z ..- " ort :r "O:Z ,,:l v ~ ~;:: i: Z~~~~~ -M III '" ~ o ~ X III it ~ ~ . AUG 1 5 20,~~, \ ' ,\ .' IN RE: CONDEMNATION OF 2,02 ACRES : IN THE COURT OF COMMON PLEAS ON LAND OF MAX C, HEMPT AND : OF CUMBERLAND COUNTY MARTHA D, HEMPT BY THE PENNSYLVANIA POWER & LIGHT ' COMPANY TO ACQUIRE EASEMENTS : NO,: 95-1077 CIVIL TERM FOR THE CONSTRUCTION, OPERATION AND MAINTENANCE OF AN ELECTRIC TRANSMISSION LINE IN SILVER SPRING : IN REM TOWNSHIP, CUMBERLAND COUNTY MEMORANDUM OF LAW 1. ComDensatlon should be based on the DroDertv Interest actuaUv taken. a right of wav over the Dortlon of the Condemnees' DroDertY. The appraisal report and testimony of the Condemnor's appraiser, Egbert J, A, Langendijk, accounted for the fact that the condemnation was not a taking of the fee simple interest of the Condemned Right of Way, but rather was just the taking of an easement. His calculation of the adjustment of a lesser interest than the fee simple interest of the Condemnees was uncontroverted by the Condemnees, The testimony of the expert appraiser of the Condemnee. Lester G, Connor, did not take Into account the fact that only an easement over a portion of the Condemnees' land was taken by the filing of the Declaration of Taking, The Condemnor's expert appraiser did consider that relevant factor in arriving at his opinion, This factor alone renders the opinion of the Condemnor's expert more credible, The Pennsyivania Eminent Domain Code governs the measure of damages for condemned property, Just compensation shall consist of the difference between the fair market value of the condemnee's entire property interest immediately before the condemnation and as unaffected thereby and the fair market value of his property interest remaining Immediately after such condemnation and as affected thereby, and such other damages as are provided In this code, 26 P.S, ~ 1-602(a), The Declaration of Taking specifically stated that only an easement was taken, not the entire fee simple interest of the Identified land, Because the Condemnees retain the fee simple ownership of the Condemned Right of Way, less the nonexclusive easement of the Condemnor, the damages they Incurred are something less than the per acre value of the fee simple Interest of the property taken as calculated by the Condemnees, This Is In conformance with a plain reading of the Compensation provision of the Eminent Domain Code and Is supported by Pennsylvania case law, Simply stated, the proper formula for determining just compensation Is the value of the property before condemnation minus the value of the right of way taken by PPl, The position that the computation of the value owed to the landowners must Include the fact that only a right of way was condemned has a long been supported by Pennsylvania case law, The Commonwealth Court In Township of Comp/anter v. McGregor, 745 A,2d 725 (Pa, Cmwlth, Ct. 2000), held that a condemnor is entitled to have damages assessed on the basis of what was actually taken, /d. at 727; see a/so Bachner v, City of Pittsburgh, 339 Pa. 535, 15 A,2d 363, Similarly, Dicke/ v, Bucks-Falls fE/ectric Co., 306 Pa, 504,160 A, 115 (1932), held that, because an electric company could not appropriate more land than was necessary, it follows "that the damages to which the appellee Is entitled are damages resulting from the appropriation of the described right of way across his land, ,.... /d, at 510, 117. The Pennsylvania Supreme Court further stated "[I]n view of this fact, it was unfortunate that the trial court 2 allowed the case to be tried on the theory of a virtually absolute appropriation by the electric company of the strip of land to the entire exclusion of the landowner," Id, In Pennsylvania Power & Light Co, v, Baldassari, 15 Pa,Cmwlth, 552, 328 A,2d 213 (1975), PP&L condemned a 325-foot easement across the condemnee's 603-acre tract of land. Id. at 554, 214, The lower court had found that the condemnation was a total taking and ascribed no value to the land when it computed damages, Id, at 555- 556, 215. The Commonwealth Court reversed, finding that only an easement had been condemned, The Court reasoned that "[t]he appellee-condemnee not only has the after value of the reversion if the easement is abandoned, which may not be of great value although certainly worth something, but he also has the right to use this [condemned land] for all, , ,purposes not inconsistent with appellant-condemnors easement." Baldassari, 15 Pa.Cmwlth, at 556, 328 A,2d at 215, To allow the landowners to receive damages as If a fee simple interest had been condemned would be to grant them an unjustified windfall, The Condemnees retain ownership of the property, and may use the Condemned Right of Way for any purpose not inconsistent with the right of way possessed by PPL, This includes continued use of the property as grazing land and in calculating the Township required setbacks, of which the entire easement area is within, Further evidence that the Condemnees have some use of the easement area is the existence of the railroad spur across the easement area on the Industrial portion of the property, The statute governing valuation and case law clearly Indicate that damages are to be assessed on the basis of what was actually taken, 3 2. Delav damaaes. If applicable. should be calculated onlv from the time of the Condemnees' Petition For Appointment of Board of Viewers. As set forth in the Condemnor's Proposed Findings of Fact and Conclusions of Law, the amount of compensalion resulling from the Declaralion of Taking Is less than the amount already paid to the Condemnees' as eslimated just compensalion. Therefore, there are no delay damages owing. In the event the Board of View determines that the amount of compensation owing to the Condemnees is greater than the $6,000.00 already paid, the amount of delay damages owing should be calculated only from the time that the Condemnees filed their Pelition for Appointment of Board of Viewers, which was over four and one- half (4 ~) years after the filing of the Declaration of Taking. Entitlement to delay compensation Is set forth in the Eminent Domain Code. The condemnee shall not be enlitled to compensalion for delay in payment during the period he remains in possession after the condemnation, nor during such period shall a condemnor be enlltled to rent or other charges for use and occupancy of the condemned property by the condemnee. Compensation for delay in payment shall, however, be paid at the rate of six per cent per annum from the date of relinquishment of possession of the condemned property by the condemnee, or, If the condemnalion is such that possession is not required to effectuate it, than delay compensation shall be paid from the date of condemnalion. 26 P.S. ~ 1-611. Pennsylvania Courts have held that condemnees are not enlltled to delay compensation during periods in which they were the cause of the delay. For example, in Hagan v. East Pennsboro Township, 713 A.2d 1187 (pa. Cmwlth. Ct. 1998), the Commonwealth Court affirmed the toiling of calculallon of delay damages for a period of one year because of the request for a continuance of the board of view hearing due to the death of the condemnee's expert witness. 4 The Condemnees should not benefit for their own delay in bringing this case to a Board of View. The Condemnor paid to the Condemnee the amount it considered fair within a short lime after filing of its Declaration of Taking. The Condemnees then sat on their hands for four and one-half years. The Condemnees in this case cannot rest upon the argument that the Condemnors should have requested the appointment because the Condemnor had already paid what it thought was fair compensallon for the taking pursuant to 26 P.S. ~ 1.407. The Eminent Domain Code, 26 P.S. ~ 1-502, allows that either the condemnee or the condemnor may file a pelltion requesling the appointment of viewers. There is no requirement that the condemnor inillate proceedings. On this issue, the case of Hineline v. General State Authority of Pa., 15 Pa.Cmwlth. 44, 324 A.2d 817 (1974) is Instrucllve. In that case, the board of viewers awarded the condemnees the amount of $168,000.00 as compensalion for a taking by the Commonwealth of Pennsylvania, but failed to make a finding as to the date from which delay damages should accrue. Id. at 48, 819. Neither party limely appealed that decision. However, after payment of a portion of the amount claimed by the condemnees, the condemnees attempted to collect a remaining balance owing (according to the condemnees) of over $6,000.00 by way of a complaint in mandamus. The condemnees argued that they were enlitled to delay damages from the time of the taking, even though they did not appeal the decision of the Board of View that failed to state the lime to start calculallon of delay damages. The condemnees claimed that the condemnor had a duty to appeal to clarify the lime from which any delay damages should be calculated. The Commonwealth Court disagreed and held that the 5 IN RE: CONDEMNATION OF 2.02 ACRES : IN THE COURT OF COMMON PLEAS ON LAND OF MAX C. HEMPT AND : OF CUMBERLAND COUNTY MARTHA D. HEMPT BY THE PENNSYLVANIA POWER & LIGHT : COMPANY TO ACQUIRE EASEMENTS : NO.: 95-1077 CIVIL TERM FOR THE CONSTRUCTION, OPERATION AND MAINTENANCE OF AN ELECTRIC : TRANSMISSION LINE IN SILVER SPRING : IN REM TOWNSHIP, CUMBERLAND COUNTY MEMORANDUM OF LAW 1. Compensation should be based on the property Interest actually taken. 8 right of wav over the portion of the Condemnees' property. The appraisal report and testimony of the Condemnor's appraiser, Egbert J. A. Langendijk, accounted for the fact that the condemnation was not a taking of the fee simple interest of the Condemned Right of Way, but rather was just the taking of an easement. His calculation of the adjustment of a lesser Interest than the fee simple interest of the Condemnees was uncontroverted by the Condemnees. The testimony of the expert appraiser of the Condemnee, Lester G. Connor, did not take into account the fact that only an easement over a portion of the Condemnees' land was taken by the filing of the Declarallon of Taking. The Condemnor's expert appraiser did consider that relevant factor in arriving at his opinion. This factor alone renders the opinion of the Condemnor's expert more credible. The Pennsylvania Eminent Domain Code governs the measure of damages for condemned property. Just compensation shall consist of the difference between the fair market value of the condemnee's entire property interest immediately before the condemnation and as unaffected thereby and the fair market value of his property interest remaining immediately after such condemnation and as affected thereby, and such other damages as are provided in this code. 26 P.S. ~ 1-602(a). The Declaration of Taking specifically stated that only an easement was taken, not the entire fee simple interest of the identified land. Because the Condemnees retain the fee simple ownership of the Condemned Right of Way, less the nonexclusive easement of the Condemnor, the damages they incurred are something less than the per acre value of the fee simple interest of the property taken as calculated by the Condemnees. This is in conformance with a plain reading of the Compensation provision of the Eminent Domain Code and is supported by Pennsylvania case law. Simply stated, the proper formula for determining just compensation is the value of the property before condemnation minus the value of the right of way taken by PPL. The position that the computation of the value owed to the landowners must include the fact that only a right of way was condemned has a long been supported by Pennsylvania case law. The Commonwealth Court in Township of Complanter v. \ r, 1 I i ,I ! McGregor, 745 A.2d 725 (pa. Cmwlth. Ct. 2000), held that a condemnor is enlltled to have damages assessed on the basis of what was actually taken. ld. at 727; see also Bachner v. City of Pittsburgh, 339 Pa. 535, 15 A.2d 363. Similarly, Dickel v. Bucks-Falls Electric Co., 306 Pa. 504, 160 A. 115 (1932), held that, because an electric company' could not appropriate more land than was necessary, it follows "that the damages to which the appellee is entitled are damages resulting from the appropriallon of the described right of way across his land. . ,," ld. at510, 117. The Pennsylvania Supreme Court further stated "[i]n view of this fact, it was unfortunate that the trial court 2 allowed the case to be tried on the theory of a virtually absolute appropriation by the electric company of the strip of land to the entire exclusion of the landowner." ld. In Pennsylvania Power & Light Co. v. Baldassari, 15 Pa.Cmwlth. 552, 328 A.2d 213 (1975), PP&L condemned a 325-foot easement across the condemnee's 603-acre tract of land. ld. at 554, 214. The lower court had found that the condemnation was a i I: ~ h , total taking and ascribed no value to the land when it computed damages. ld. at 555- 556,215. The Commonwealth Court reversed, finding that only an easement had been condemned. The Court reasoned that "[t]he appellee-condemnee not only has the after value of the reversion if the easement is abandoned, which may not be of great value although certainly worth something, but he also has the right to use this [condemned land] for all. . . purposes not Inconsistent with appellant-condemn or's easement." Baldassari, 15 Pa.Cmwlth. at 556, 328 A.2d at 215. To allow the landowners to receive damages as if a fee simple interest had been condemned would be to grant them an unjustified windfall. The Condemnees retain ownership of the property, and may use the Condemned Right of Way for any purpose not Inconsistent with the right of way possessed by PPL. This includes continued use of the property as grazing land and in calculating the Township required setbacks, of which the entire easement area is within. Further evidence that the Condemnees have some use of the easement area is the existence of the railroad spur across the easement area on the Industrial portion of the property. The statute governing valuation and case law clearly indicate that damages are to be assessed on the basis of what was actually taken. 3 2. Delav damaaes. If applicable. should be calculated onlv from the time of the Condemnees' Petition For Appointment of Board of Viewers. As set forth in the Condemnor's Proposed Findings of Fact and Conclusions of Law, the amount of compensation resulting from the Declaration of Taking is less than the amount already paid to the Condemnees' as estimated just compensation. Therefore, there are no delay damages owing. In the event the Board of View determines that the amount of compensation owing to the Condemnees is greater than the $6,000.00 already paid, the amount of delay damages owing should be calculated only from the time that the Condemnees filed their Petition for Appointment of Board of Viewers, which was over four and one- half (4 Y.I) years after the filing of the Declaration of Taking. Entitlement to delay compensation is set forth In the Eminent Domain Code. The condemnee shall not be entitled to compensation for delay in payment during the period he remains in possession after the condemnation, nor during such period shall a condemnor be entitled to rent or other charges for use and occupancy of the condemned property by the condemnee. Compensation for delay In payment shall, however, be paid at the rate of six per cent per annum from the date of relinquishment of possession of the condemned property by the condemnee, or, if the condemnation is such that possession is not required to effectuate it, than delay compensation shall be paid from the date of condemnation. 26 P.S. ~ 1-611. Pennsylvania Courts have held that condemnees are not entitled to delay compensation during periods in which they were the cause of the delay. For example, in Hsgsn v. Esst Pennsboro Township, 713 A.2d 1187 (pa. Cmwlth. Ct. 1998), the Commonwealth Court affirmed the tolling of calculation of delay damages for a period of one year because of the request for a continuance of the board of view hearing due to the death of the condemnee's expert witness. 4 The Condemnees should not benefit for their own delay in bringing this case to a Board of View. The Condemnor paid to the Condemnee the amount it considered fair within a short time after filing of its Declaration of Taking. The Condemnees then sat on their hands for four and one-half years. The Condemnees in this case cannot rest upon the argument that the Condemnors should have requested the appointment because the Condemnor had already paid what it thought was fair compensation for the taking pursuant to 26 P.S. ~ 1-407. The Eminent Domain Code, 26 P.S. ~ 1-502, allows that either the condemnee or the condemnor may file a petition requesting the appointment of viewers. There is no requirement that the condemnor initiate proceedings. On this issue, the case of Hineline v. General State Authority of Pa., 15 Pa.Cmwlth. 44, 324 A.2d 817 (1974) is instructive. In that case, the board of viewers awarded the condemnees the amount of $168,000.00 as compensation for a taking by the Commonwealth of Pennsylvania, but failed to make a finding as to the date from which delay damages should accrue. ld. at 48, 819. Neither party timely appealed that decision. However, after payment of a portion of the amount claimed by the condemnees, the condemnees attempted to collect a remaining balance owing (according to the condemnees) of over $6,000.00 by way of a complaint in mandamus. The condemnees argued that they were entitled to delay damages from the time of the taking, even though they did not appeal the decision of the Board of View that failed to state the time to start calculation of delay damages. The condemnees claimed that the condemnor had a duty to appeal to clarify the time from which any delay damages should be calculated. The Commonwealth Court disagreed and held that the 5 condemnees had an "equal opportunity or obligation to file an appeal if it was not satisfied with the report filed by the Board of Viewers." ld. at 49,324 A.2d 820. Instead, the Court noted that the condemnees "waited two and a half years after the Board of Viewers' report was filed to bring this action in mandamus." ld. at 50,324 A.2d 820. Hineline indicates that it is not the duty of anyone party to pursue an action. Thus, PPL was not required to initiate a hearing. If the Condemnees were dissatisfied with the compensation offered and paid by the Condemnor, they should have initiated a hearing with a greater degree of promptness. The Condemnees should not benefit from theIr delay in asking for the matter to be heard by a Board of Viewers and any delay compensation should be calculated only from the date the Condemnees filed their Petition for Appointment of Viewers. Additionally, since the Condemnees failed to submit any evidence of the interest to be used for any delay damages, if any such calculation Is warranted, such interest should be at the statutory amount of six (6%) per cent per annum. 6 CONCLUSION The Condemnees are entitled only to the fair market value of the easement condemned by the Condemnor, which results in a diminution of value of the properties of $4,153. No delay damages are owing because the Condemnor has paid to the Condemnees more than that amount. If any delay damages are owing, they should be calculated only from the time the Condemnees filed their Petition for Appointment of Board of View and only at the rate of six (6%) per cent per annum. r Dated: August 14, 2001 7 IN RE: CONDEMNATION OF 2.02 ACRES : IN THE COURT OF COMMON PLEAS ON LAND OF MAX C. HEMPT AND OF CUMBERLAND COUNTY MARTHA D. HEMPT BY THE PENNSYLVANIA POWER & LIGHT COMPANY TO ACQUIRE EASEMENTS NO.: 95-1077 CIVIL TERM FOR THE CONSTRUCTION, OPERATION AND MAINTENANCE OF AN ELECTRIC : TRANSMISSION LINE IN SILVER SPRING : IN REM TOWNSHIP, CUMBERLAND COUNTY CERTIFICATE OF SERVICE I hereby certify that the foregoing Memorandum of Law was sent by first class, postage prepaid mail this day to the following: Steven P. Miner, Esquire Metzger Wickersham 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 William A. Duncan, Esquire 1 Irwin Row Carlisle, PA 17013 Mr. R. Fred Hefelfinger 247 Baltimore Street Carlisle, PA 17013 Mr. Elmer Ritter 712 S. Market Street Mechanicsburg, PA 17055 WIX, Date: August 14,2001 IN RE: Condtmnation oU.Ol acrts of Land of Max C. Htmpt and Martha D. Htmpt by tht Ptnnsylvania Powtr & Light Company to Acquirt Eastmtnts for tht Construction, Optration and Malnttnance ofan Ettctrlc Transmission Line In Silver Spring Township, Cumberland County IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-1077 CIVIL TERM EMINENT DOMAIN PROCEEDINGS IN REM REPORT OF VIEWERS TO THE HONORABLE. THE JUDGES OF SAID COURT: The undersigned Viewers respectively report: HISTORY OF THE CASE 1. On October 18, 1999, the Condemnees, filed a Petition for the Appointment of Viewers and on October 19, 1999, the Court appointed William A. Duncan, Esquire, Chairman, R. Fred Heffelfinger and Elmer L. Ritter, as a Board of View to lIScertain the just compensation due the Condemnees from PP & L acquiring easements for construction, operation and maintenance of an electrical transmission line on Condemnees land in Silver Spring Township, Cumberland County, Pennsylvania, and for all sums payable to Condemnees under the provisions of Section 609 of the Eminent Domain Code. 2. The Board of View served Notice of View on Metzger Wickersham c/o David Martineau, attorney for Martha D. Hempt and the Estate of Max C. Hempt, and Wi", Wenger & Weidner c/o Steven J. Dzuranin, attorney for Pennsylvania, Power & Light Company, and R Fred Hefelfinger and Elmer L. Ritter, Board of Viewer's and Lester G. Conner, Appraiser, by Certified Mail, Return Receipt requested. A copy of Notice of View and the Return receipts therefore are attached hereto. 3. A View of the premises was held by the Board of View on June 18,2001 at 9:00 A.M., at the site, and was attended by all members of the Board, the Attorneys for the Condemnor and Condemnee. 4. The Board of View served Notice of Hearing on Metzger Wickersham c/o David Martineau, attorney for Martha D. Hempt and the Estate of Max C. Hempt, and Wi", Wenger & Weidner c/o Steven J. Dzuranin, attorney for Pennsylvania, Power & Light Company, and R Fred Hefelfinger and Elmer L. Ritter, Board of Viewer's and Lester G. Conner, Appraiser, by Certified Mail, Return Receipt requested. A copy of Notice of Hearing and the Return receipts therefore are attached hereto. S. A Hearing WllS held on June 18,2001 at 10:30 A.M. in the 2nd Floor Hearing Room of the Old Court House, I Courthouse Square, Carlisle, PA 170t3. FINDING OF FACTS 1. PPL Etectric Utilities Corporation (f/kIa Pennsylvania Power & Light Company) ("PPL or Condemnor") is a corporation duly organized and existing under the laws of the Commonwealth of Pennsylvania. 2. PPL was and is authorized by the provisions of the Pennsylvania Business Corporation Law of 1988, as amended, 15 Pa.C.S.A. 15 t 1 (the "PBCL") to take, acquire, and condemn property in fee simple or such lesser estate or interest as the Condemnor shall determine. 3. On March 1, 1995, pursuant to the provisions of the PBCL, PPL condemned an easement over certain property of Max C. Hempt and Martha D. Hempt, (the Condemnees), as such property is identified in the Declaration of Taking filed in the instant matter (the Condemnation). The total amount of the easement area is 2.02 acres (the Condemned Right-of-Way) 4. On October 27, 1993, a Resolution was adopted by the PPL for the said condemnation to condemn and appropriate easements, and to enter upon, use and occupy lands described in the Declaration of Taking. 5. As a result of said Resolution, hearings were conducted by the Pennsylvania Public Utility Commission (PUC) and on December t5, 1994, the PUC issued a final order approving the application, and made a finding that the proposed exercise of the power of eminent domain by the PPL is necessary and proper for the service of the public. 6. The condemnation was authorized by the PUC according to the PBCL, 15 Pa.C.S.A. 1511 (c). 7. The purpose of the condemnation was to appropriate easements over, across and under certain lands to the extent required for a right-of-way to be used for the construction, reconstruction, operation and maintenance of the PPL West Shore Transmission Line (Transmission Line), for the transmission and/or distribution of electric light, heat and power, or any of them, including such poles of wood and/or other appropriate materials, and all such wires, fixtures and apparatus as may be necessary for the proper and efficient construction, operation and maintenance of said Transmission Line. 8. The description of the property condemned is set forth on Exhibit A attached to the Declaration of Taking and is located totany within Silver Spring Township, Cumberland County, Pennsytvania, and is identified on the plan attached thereto as Exhibit B, a copy of which is attached hereto as Condemnor's Exhibit 1 for ease of reference. 9. At the time of Condemnation, Max C. Hempt and Martha D. Hempt were the fee simple owners of the condemned right of way and the tracts ofland of which it is a part. 10. The nature of the title acquired by PPL is a pennanent easement with a perpetual right ofPPL, its successors and assigns to construct, reconstruct, operate, renew, replace, add to, and maintain the facilities constituting the said Transmission Line, including without limitation, poles, towers, guys, cables, wires, fiber optics, fixtures and apparatus necessary for the convenient transaction of the business ofPPL for the transmission andlor distribution of electricity, on, under, over, or across the said right of way together with: I). the right, as often as necessary, to cut down any trees or brush and to remove any buildings, or other things from the said right of way; 2). the right to cut down andlor trim any trees within 25 feet on either or both sides of the edge of the right of way which may endanger the safety of, interfere with the use of, or be a menace to any facilities or structures which may now or in the future be maintained upon said right of way; and 3). the right to ingress and egress to, from, upon and over the said right of way for the construction, reconstruction, operation and maintenance of said transmission line. II. On April 28, 1995, the Condemnor paid to the Condemnees the sum of Six Thousand ($6,000.00) Dollars as estimated just compensation. 12. 14, t999. The Condemnees did not file a Petition for Appointment of Viewers until October 13. On October 19,1999, the Court of Common Pleas appointed William A Duncan, Esquire, R. Fred Hefelfinger and Elmer Ritter as the Board of Viewers. 14. After certain scheduling conflicts were resolved, a View and Hearing were conducted on June 18, 200 I. 15. The Condemned right of way is located at the southern boundary of three separate tracts ofland. 16. The first tract (tract I) consists ofa total of83.6 acres and was zoned for general industrial use at the time of the view and was zoned for agricultural use at the time of the condemnation. The portion of the Condemned right of way along this tract I contains a total of .8125 acres. 17. The second tract (tract 2) consists ofa total of 122.8 acres and was zoned for agricultural use at the time of the View and was zoned for agricultural use at the time of the condemnation t8. The third tract (tract 3) consists ofa total of 11.1 acres and was zoned for agricultural use at the time of the View and was zoned for agricultural use at the time of the condemnation. 19. The portion of the Condemned right of way along tract 2 and 3 contains a total of 1.2075 acres. 20. Tracts 2 and 3 have been used as a horse farm for decades. 21. The condemned right of way consists of a strip of land along the southern boundaries of the tract and approximately thirty (30') feet wide. 22. The electric transmission line is located entirely on the neighboring railroad property, not in the condemned right of way. 23. The rear yard setback requirement for the general industrial zone in Silver Spring Township is fifty (SO') feet. 24. The rear yard setback requirement in an agricultural zone in Silver Spring Township is thirty-five (35') feet. 25. Neither at the time of the Condemnation. nor subsequent thereto, were there any plans to rezone tracts 2 and 3 for any other use other than agricultural. 26. If tracts 2 and 3 are to be developed, a rezoning of the property will be necessary. 27. The amount of property interest that was taken by the taking of the condemned right of way was an easement, which is substantially less than the taking of fee simple interest in the property. CONCLUSION OF LAW I. PPL properly filed the Declaration of Taking to acquire the Condemned right of way by the power of eminent domain. 2. The property interest condemned was an easement over a strip ofland at the southern boundary of the individual tracts. 3. An easement is a substantially lesser estate in land than a fee simple interest. 4. The interest of the condemned property was a non-exclusive easement and the Condemnees are able to continue to use the land for uses that do not otherwise interfere with the access to and from the transmission line that has been placed on the neighboring railroad bed. 5. The Condemnor has paid to the Condenmee the sum of$6,000.00 as estimated just compensation. IN RE: Condemnation of 2.02 acres Of Land of Max C. Hempt and : Martha D. Hempt by the Pennsylvania: Power & LIght Company to Acquire : Easements for the Construction, Operation and Maintenance of an Electric Transmission LIne In Sliver Spring Township, Cumberland County TO: R. Fred Hefelflnger 247 Baltimore Street Carlisle, PA 17013 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 95.1077 CIVIL TERM EMINENT DOMAIN PROCEEDINGS . . IN REM NOTICE OF VIEW Elmer Ritter 712 S. Market SI. Mechanlcsburg, PA 17055 William A. Duncan, Chairman 1 Irvin Row Carlisle, PA 17013 Lester G. Conner 2159 Market Street Camp Hili, PA 17011 Estate of Max C. Hempt c/o Hempt Bros, Inc. P.O. Box 278 Camp Hill, PA 1701 Metzger Wickersham David Martineau 3211 N. Front Street Harrisburg, PA 17101 Martha D. Hempt 941 Umekiln Road New Cumberland, PA 17070 NOTICE IS HEREBY GIVEN that an Order of the Court of Common Pleas of Cumberland County has been Issued to William A. Duncan, R. Fred Hefelfinger and Elmer R. Ritter directing them to view the premises of the Condemnees, situate on Hempt Road, Silver Spring Township, Cumberland County, Pennsylvania, and assess the damages. if any. by virtue of the condemnation by the Pennsylvania Power & Light Company, and that said Viewers will meet at the Office of Hempt Farm on Hempt Road, on June 18, 2001 at 9:00 a.m. for the performance of their duties under said Order. All parties interested may attend at said time and place to a ompany the said Viewers and present their objections. \/ IN RE: Condemnation of 2.02 acres Of Land of Max C. Hempt and Martha D. Hempt by the Pennsylvania: Power & Light Company to Acquire Easements for the Construction, Operation and Maintenance of an Electric Transmission Line In Sliver Spring Township, Cumberland County IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 95.1077 CIVIL TERM EMINENT DOMAIN PROCEEDINGS . . IN REM NOTICE OF HEARING TO: R. Fred Hefelflnger 247 Baltimore Street Carlisle, PA 17013 Metzger Wickersham David Martineau 3211 N. Front Street Harrisburg, PA 17101 Martha D. Hempt 941 Limekiln Road New Cumberland, PA 17070 Elmer Ritter 712 S. Market SI. Mechanicsburg, PA 17055 William A. Duncan, ChaIrman 1 Irvin Row Carlisle, PA 17013 Estate of Max C. Hempt c/o Hempt Bros, Inc. P.O. Box 278 Camp Hill, PA 17011 Lester G. Conner 2159 Market Street Camp Hill, PA 17011 NOTICE IS HEREBY GIVEN that the Board of View will hold a hearing In the above captioned case on June 18, 2001 at 10:30 a.m., in the Hearing Room, 2nd Floor of the Old Court House, In Carlisle, Pennsylvania and the Court of Common Pleas of Cumberland County, Pennsylvania, will assign an office Court Reporter to record the proceedings. Should the parties to this proceedings agree to a 20ntinuance or rescheduling, . you are directed to notify WILLIAM A. DUNCAN, ESQ E, imm iately. B I I ( L~ in, Esquire emnor ~ 0 '- .. c}. ,- ';"J () -::: l?:~" , (:7 " ~. ) " - , .):,~ <- I ~... ( .-. :-:~~i J -. ( t.... , " .- . L., .~;'.'1? ,.:;;' _J {j -- If) (; fr: " ,-:. .. .;:: 1 N -~J,,~ ( ),;,.; c:._ ~)~:;: )~:j '''' '.::(.:; , -,c. .' f;; Ce- ',Iitl ..... ;.: ~ L1... L..... 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