In re: Taking of Lands of WBF Assoc., Appeal of Lehigh-Northampton Airport Authority (Concurring And Dissenting Opinion)
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[J-15A,B&C-2005]] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN, BAER, JJ. IN RE: DE FACTO CONDEMNATION AND TAKING OF LANDS OF WBF ASSOCIATES, L.P. BY LEHIGHNORTHAMPTON AIRPORT AUTHORITY : : : : : C. THOMAS FULLER, INTERVENOR : : : APPEAL OF: LEHIGH-NORTHAMPTON : AIRPORT AUTHORITY : : : IN RE: DE FACTO CONDEMNATION : AND TAKING OF LANDS OF WBF : ASSOCIATES, L.P. BY LEHIGH: NORTHAMPTON AIRPORT AUTHORITY : : C. THOMAS FULLER, INTERVENOR : : : APPEAL OF: WBF ASSOCIATES, L.P. : : : : IN RE: DE FACTO CONDEMNATION : AND TAKING OF LANDS OF WBF : ASSOCIATES, L.P. BY LEHIGH: NORTHAMPTON AIRPORT AUTHORITY : : : APPEAL OF: C. THOMAS FULLER, : INTERVENOR : : : : : : No. 172 MAP 2004 Appeal from the Order of the Commonwealth Court, entered on March 26, 2004 at No. 1615 CD 2003, that affirmed in part and reversed in part the Order of the Court of Common Pleas of Lehigh County, entered on June 27, 2003 at No. 96-C-2334. No. 173 MAP 2004 Appeal from the Order of the Commonwealth Court, entered on March 26, 2004 at No. 1615 CD 2003, that affirmed in part and reversed in part the Order of the Court of Common Pleas of Lehigh County, entered on June 27, 2003 at No. 96-C-2334. No. 174 MAP 2004 Appeal from the Order of the Commonwealth Court, entered on March 26, 2004 at No. 1615 CD 2003, that affirmed in part and reversed in part the Order of the Court of Common Pleas of Lehigh County, entered on June 27, 2003 at No. 96-C-2334. ARGUED: March 8, 2005 CONCURRING AND DISSENTING OPINION MR. JUSTICE EAKIN DECIDED: August 22, 2006 I join the majority s opinion on issues I and III. I dissent from the award of mortgage interest, and join with the reasoning of Justice Saylor on that point. Under § 502(e) of the Eminent Domain Code, a judgment awarding compensation to the condemnee for the taking of property shall include reimbursement of reasonable appraisal, attorney and engineering fees and other costs and expenses actually incurred. 26 P.S. § 1-609. Mortgage interest is not other costs and expenses actually incurred because interest on the mortgage would have accrued regardless of the condemnation. Mortgage interest is based on a debt secured by the property taking of the property affects only that security, not the debt itself nor its terms and conditions. See Briegel v. Briegel, 160 A. 581, 583 (Pa. 1931) (upon condemnation, liens, encumbrances, or mortgages are divested from land and attach to funds realized from land). Mortgage expenses are not created by or connected to the condemnation of that property; in fact, the initial proceeds of a mortgage may or may not relate to the encumbered property itself proceeds may be used for any purpose at all, not just the acquisition or improvement of the property encumbered. The obligation to repay the mortgage is required only because of the terms of the mortgage itself, not by reason of the condemnation. See id. While the ability to repay mortgage interest may be affected by the taking, that does not convert mortgage interest itself into part of the costs and expenses caused by the condemnation. [172 MAP 2004] - 2
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