Justice, concurring.
I agree that The BOC Group is not entitled to compensation for delay in payment of the damages it received in this case. I am not persuaded that delay compensation under Section 611 is intended to apply to “special damages” under Article VI-A of the Eminent Domain Code.
As the Opinion Announcing the Judgment of the Court notes, because Section 611 on its face does not indicate what the basis for calculating delay compensation is, we are required to ascertain the legislature’s intent. Section 611 establishes that delay compensation is payable “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, then delay compensation shall be paid from the date of condemnation.” It also provides that delay compensation is not payable as to “funds paid on account, or by deposit into court.” These references indicate to me a legislative intention to relate delay compensation to the “traditional” condemnation process, i.e., declaration of taking, estimate of compensation, payment into court, etc.
In contrast, the “special damages” provided for in Article VI-A are nowhere related to relinquishment of possession or any other event in the timetable of the condemnation process. For example, Section 601A(a) refers to reimbursement of moving expenses after they have been incurred; Section 601A(b)(2) provides for determining the value of lost personal property by reference to “the net proceeds obtained by the displaced person at a commercially reasonable public or private sale.” Surely the legislature could not have intended that a delay in paying these damages be calculated from the date of the condemnation.1
The error in the reasoning of the Opinion Announcing the Judgment of the Court is its assertion that because “special damages” are included in the statutory definition of “just compensation,” delay in paying them warrants compensation under Section 611. Section 611 does not mention “just compensation” any more than it mentions “general damages” or “special damages.” It speaks of delay in payment but does not specify delay in payment of what.
In my view, the “special damages” provided in Article VI-A are payments as a matter of legislative grace, not required as constitutional “just compensation.” As a result, there is no constitutional requirement that delay compensation be paid with respect to these damages. Finding no clear statutory requirement to that effect,21 would interpret Section 611 as addressing only the delay compensation that is constitutionally required to make the property owner whole.
CASTILLE, J., joins this concurring opinion.. The absurdity of this interpretation is especially apparent in situations such as this where the condemnee is a tenant rather than the titleholder of the condemned property. Unlike the titleholder’s interest, a tenant’s interest is not immediately affected by the declaration of taking itself. A tenant can continue to enjoy all the benefits of its leasehold interest until the agency takes physical control of the property. In fact, it is possible for the lease to expire by its terms before the agency takes possession, in which case the tenant is no longer a condemnee.
The Opinion Announcing the Judgement of the Court employs the fiction of "equitable possession” and "physical possession" and examines whether the tenant was deprived of the normal use of the property by the declaration of taking. However, Section 611 does not provide for delay compensation from the date the agency takes possession (physical or equitable); rather delay is computed from the date the condemnee relinquishes possession. There is no basis in the statute for inquiring into why the condemnee vacated the premises or whether it was required to do so.
. Indeed, Section 604A indicates an intent that displaced persons receive prompt, fair, and full payment of "special damages,” and establishes a regulatory process to assure that these purposes are accomplished. This regulatory review is unique to the "special damages” provided in Article VI-A. However, Section 604-A contains no suggestion that acquiring agencies are responsible for interest if payments are delayed.