Holmes Protection of Pittsburgh, Inc. v. Port Authority

*348Dissenting Opinion by

Senior Judge Kalish :

I respectfully dissent because I believe that the preliminary objections should be overruled and that the petitioner should be allowed to show the extent of his damages, if any, in an eminent domain proceeding.

Under the common law, a public utility’s use of the municipal roadways was subject at all times to the paramount right of the municipality to control and regulate their use under the police power. Philadelphia Electric Co. v. Philadelphia, 301 Pa. 291, 152 A. 23 (1930). Consequently, a permit to use the streets had been characterized as defeasible, and subordinate to the police power. No vested rights are conferred. The utility had no compensable property interest associated with its use of the streets for its lines. With the termination of this license, the utility was left without any interest m the land of any kind and no compensable interest. Vermont Gas Systems v. City of Burlington, 130 Vt. 75, 286 A.2d 275 (1971); Delaware River Joint Commission Case, 342 Pa. 119, 19 A.2d 278 (1941) (superseded by statute as stated in Philadelphia v. Philadelphia Electric Co., 504 Pa. 312, 473 A.2d 997 (1984)); Bell Telephone Co. of Pennsylvania v. Public Utility Commission, 139 Pa. Superior Ct. 529, 12 A.2d 479 (1940). On this rationale, the appellee bases its contention that no compensation is required in eminent domain proceedings.

However, where legislative intent to effect a departure from a firmly established principle of law is expressed in clear and unequivocal language, such principle is regarded as changed. Philadelphia Suburban Water Co. v. Public Utility Commission, 168 Pa. Superior Ct. 360, 78 A.2d 46 (1951); Vermont Gas Systems.

The Urban Redevelopment Law, Act of May 24, 1945, P.L. 991, as amended, 35 P.-S. §§1701-1746.1, ex*349presses just such an intent. In that Act, real property to be taken by eminent domain is defined as lands, structures and any and all easements, franchises and incorporal hereditaments. 35 P.S. §1703 (K). In addition, the appellant was paid for its claim for relocation damages and business displacement damages under the Uniform Relocation Act. This shows an intent that the general public should bear the costs where a public improvement is involved. Incidentally, the fact that this appellant received moving expenses does not entirely dispose of the matter because associated with the complaint is ia claim for compensation for the lines left behind in the area project. Relocation damages are also provided for in the Eminent Domain Code.

Under Section 607 of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. §1-607, machinery, equipment and fixtures forming part of the real estate must be taken into consideration in determining damages. Since the Code did not provide the criteria for determining when machinery, equipment and fixtures become part of the real estate and when they are personal property, our supreme court fashioned what is known as the assembled economic unit doctrine. Singer v. Oil City Redevelopment Authority, 437 Pa. 55, 261 A.2d 594 (1970); Redevelopment Authority of Erie v. Pulakos, 17 Pa. Commonwealth Ct. 251, 330 A.2d 869 (1975). Under this doctrine, the Code views a taking of a commercial enterprise as an enforced relocation and, where equipment must be moved, the condemnee ordinarily is paid removal and installation costs only. However, that which is not removable without substantial injury, is compensable as part of the real estate for eminent domain purposes. Singer.

*350The Code, therefore', defines personal property as any tangible property not considered to be real estate for purposes of general damages. 26 P.S. §1-201(10). Also, under the assembled economic unit doctrine as set forth in Singer, property converted to real estate is not personal property. It may be argued that since title to the street remains in the municipality, the lines should be considered as real estate and are also owned by the municipality. However, for eminent domain purposes, the intent in any taking was to compensate the franchise.

In conclusion, since the franchise is considered real estate for eminent domain purposes, substantial interference with the beneficial use of this real estate triggers the Fifth Amendment to the United States Constitution and compensation must b'e awarded. The fact that the appellant may be able to continue to use the street in some other manner may affect the extent of the damages, but not the right to compensation.