The Pennsylvania Eminent Domain Code clearly establishes that passage of titles takes place between condemnee and condemnor at the time a declaration of taking is filed but specifies that possession does not occur simultaneous with this event. Appeal of Hawk Sales Company, 394 A.2d 657 at 661 (Pa. Commw. 1978) citing 26 Pa. C.S.A. 302 (a)(2).
Rather, the condemnor’s right to possess the property being taken ripens at the time they pay or make an offer to pay the estimated amount of just compensation. Id. Though recodified since this court decision, the following pertinent law regarding transfer of possession remains unchanged:
“The condemnor, after the expiration of the time for filing preliminary objections by the condemnee to the declaration of taking, shall be entitled to possession or right of entry upon payment of or a written offer to pay to the condemnee the amount of just compensation as estimated by the condemnor.”
26 Pa. C.S.A. 307 (a)(1)(i) (emphasis added.) One should note, however, that one situation where possession can pass without payment or a written offer thereof is where the condemnor has the right to assess the property for benefits, including for installation of a sewer or other public improvement towards the parcel. 26 Pa. C.S.A 307 (a)(1)(ii).
In addition to plainly specifying that possession passes with the payment or offer of just compensation passes wth the payment or offer of just compensation, the applicable portion of the Eminent Domain Code addressing the issuance of a write of possession clearly sets forth the same as an option only where a condemned party refuses to give possession or access. 26 Pa. C.S.A 307 (a)(1)(iii). More particularly, a condemnor in a situation such as this is directed to praecipe the court to issue a rule as to why a writ of possession should not be entered. Id. The Commonwealth Court interpreted the Section as the “process by which the condemnor may compel the condemnee to deliver up possession.” Appeal of Hawk at 661-662 (emphasis added). The Code and precedent law clearly provide that this option is available but do not specify its application in every eminent domain case.
Should a party takes issue with the just compensation being paid or offered, their legal remedy is to file a petition requesting the appointment of a board of three viewers to review the amount. 26 Pa. C.S.A 502. In the case of a sewer system installation, it is interesting that this same remedy of petitioning for a board of reviewers for the purpose of evaluating the value of the cost to be assessed towards a property owner for the benefit of the sewer to the their property is applied. Upper Moreland- Hatboro Joint Sewer Auhority v. Wilson, Pa. D.& C.2d 171 at 173-174 (Pa.Com. Pl. Montgomery 1958). As such, should a property owner challenge the offer of payment for condemnation via the benefit they are receiving for having sewer line, any disputes would be mutually linked and could be addressed by the same board of viewers.