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HomeMy WebLinkAbout86-2515 civil JAMES E. HAGAN and MARY : IN THE COURT OF COMMON PLEAS OF MARTHA HAGAN, a/k/a MARY M. : CUMBERLAND COUNTY, PENNSYLVANIA HAGAN, Condemnees : : NO. 2515 CIVIL 1986 V, EAST PENNSBORO TOWNSHIP, · IN REM (Eminent Domain) Condemnor IN RE: CONDEMNEES' MOTION FOR FINAL ORDER AND DISPOSITION ORDER OF COURT AND NOW, April 16, 1999, after careful consideration of the parties' briefs and pursuant to the Opinion filed on this date, the total delay damages to be awarded to the Condemnees is $27,010.19. The Condemnor has a credit of $27,010.68, the amount already received by the Condemnees on account. By the Court, Richard C. Snelbaker, Esquire . squire Snelbaker, Brenneman & Spare, P.C. 3901 Market Street 44 West Main Street Camp Hill, PA 17011-4227 Mechanicsburg, PA 17055-0318 For the Condemnor For the Condemnees JAMES E. HAGAN and MARY : IN THE COURT OF COMMON PLEAS OF MARTHA HAGAN, a/k/a MARY M. : CUMBERLAND COUNTY, PENNSYLVANIA HAGAN, : Condemnees : : NO. 2515 CIVIL 1986 V, EAST PENNSBORO TOWNSHIP, : IN REM (Eminent Domain) Condemnor IN RE: CONDEMNEES' MOTION FOR FINAL ORDER AND DISPOSITION OPINION In this opinion, the Court shall address Condemnees' Motion for Final Order and Disposition. The facts which give rise to this case are as follows: the Condemnor, East Pennsboro Township (hereinafter "the Township"), required a portion of the Condemnees', James and Mary Hagan (hereinafter ''the Hagans"), property to complete a municipal sewer extension. A declaration of taking was filed August 29, 1986. The parties became embroiled in a conflict over just compensation for the land taken. After numerous delays, the parties proceeded to trial in January of 1997. On January 31, 1997, the jury found in favor of the Hagans and awarded them $30,000. The Hagans accepted payment of the $30,000 verdict on March 13, 1997. In accordance with the Eminent Domain Code, 26 P. S. §1-101 et seq., the Court awarded delay damages in the amount of $23,925. The Court used the commercial loan rate, which the Court found to be the average prime rate over the 2515 CIVIL 1986 period of delay, to set the delay damage award and subtracted any interest that accrued between November 8, 1993, and November 17, 1994, a delay the Court found attributable to the Hagans. The Township has made two payments to the Hagans on account to satisfy the estimated delay damage award. The Township sent a check for $23,925.00, dated July 28, 1998, and a second check for $3,085.68, dated December 1, 1998. The total amount received by the Hagans is $27,010.68. The Township appealed the award of delay damages to the Commonwealth Court. The Hagans filed a cross-appeal. Both parties raised issues related to the delay damages set by this Court. On June 11, 1998, the Commonwealth Court issued an opinion in'which it affirmed this Court's use of the commercial loan rate to set damages, affirmed the tolling of delay damages during a delay caused by the Hagans, and reversed and remanded for delay damages to be re-computed at the relevant commercial loan rates prevailing during the delay period saying that this Court erred in applying an average of the prime rate during the delay as the commercial loan rate. The parties have returned to Court because they are unable to agree on a re-computation of the delay damages. The Hagans ask that the commercial loan rate be set at the prime rate plus one and one-half and that they be awarded interest on the delay damages because the Township has been obdurate in its 2 2515 CIVIL 1986 refusal to timely pay its obligation for delay damages. The Township asks that the commercial loan rate be set at the prime rate plus one, that no interest on the delay damages be awarded, and that the Hagans and the Township split the cost of reproducing the record sent to the Commonwealth Court on appeal. Discussion The record reflects that only the Hagans presented expert testimony as to the determination of the commercial loan rate. Their expert, a retired president of the First Bank and Trust Company, testified that the commercial loan rate for the average borrower would be prime plus one or prime plus one and one-half. It was the Hagans' burden to prove the applicable loan rate. By their witness's own admission, the commercial loan rate could be either prime plus one, at the bottom, or prime plus one and one-half, at the top: Since it was the Hagans' burden, the Court would have to speculate to determine the rate to be prime plus one and one- half. Therefore, the Court holds that the appropriate commercial loan used to calculate delay damages is the prime rate plus one.1 The parties agree that delay damages are assessed from the date of taking, August 29, 1986, and tolled from November 8, 1993, to November 17, 1994, a ~ The Court's finding is further supported by the common sense proposition that banking procedures would charge higher rates to less financially secure parties and there is an absence of any evidence on the record that the Hagans lacked sound financial resources. 3 2515 CIVIL 1986 period of delay attributable to the Hagans. They disagree concerning the ending date for damages calculation. The Township asserts that the delay period covered 3,819 days, less the delay attributable to the Hagans, and ended on the date of the verdict, January 31, 1997. The Hagans assert that the delay period lasted 3,850 days, less their own delay, and ended on March 13, 1997, the date on which payment of the $30,000 verdict was accomplished. The Eminent Domain Code is clear on this point. The Code states: "[c]ompensation for delay shall not be included by the viewers or the court or jury on appeal as part of the award or verdict, but shall at the time of payment of the award or judgment be calculated as above and added thereto." 26 P. S. §1-611 (emphasis added). The Court finds that delay damages must be calculated up to the date of payment of the jury award of $30,000. Therefore, the calculation of the delay damages is as follows: delay damages for total period commencing August 29, 1986 and ending March 13, 1997: $29,420.86 LESS delay damages accrued between November 8, 1993 and November 17, 1994: $2,410.67 total delay damages owed: $27,010.19 total delay damages already received by the Hagans: $27,010.68 total reimbursement owed the Township: $.49 The Hagans have asked for interest to be awarded on the delay damages 4 2515 CIVIL 1986 because the Township has been obdurate in its refusal to timely pay the delay damage obligation. The Hagans cite to the fact that this Court ordered the Township to pay delay damages in June of 1997 and the Hagans received nothing until July 28, 1998. Although the Hagans make a compelling argument, this Court is unable to award any interest on delay damages. The Eminent Domain Code is controlling and it states that, after the calculation of delay damages, "[t]here shall be no further or additional payment of interest on the award or verdict." 26 P. S. §1-611. This proposition was upheld in Hughes v. Commonwealth of Pennsylvania, Department of Transportation, 514 Pa. 300, 523 A.2d 747 (1987). The Pennsylvania Supreme Court held tha! a trial court erred in assessing interest on an unpaid delay damage award because Section 611 of the Eminent Domain controls. Hughes at 312, 523 A.2d 753.. Therefore, the Court holds that no interest shall be awarded to the Hagans on the delay damages. The final issue of contention between the parties is whether the Hagans and the Township must split the cost of reproducing the record sent to the Commonwealth Court for consideration on appeal. The Pennsylvania Rules of Appellate Procedure state that "[a] person upon filing any paper shall pay any fee therefor prescribed by law." Pa.R.App. P. 2710. The Township filed the initial appeal to the Commonwealth Court. The Hagans followed with a cross appeal 5 2515 CIVIL 1986 which may not have been filed absent the initial filing by the Township. Because the Township filed the first appeal, the cost of reproducing the record shall be borne by the Township alone.