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DURIKA v. DERRY TOWNSHIP SCHOOL DISTRICT. (06/30/60)

June 30, 1960

DURIKA, APPELLANT,
v.
DERRY TOWNSHIP SCHOOL DISTRICT.



Appeal, No. 115, March T., 1960, from order of Court of Common Pleas of Westmoreland County, Oct. T., 1958, No. 362, in case of Steve J. Durika et ux. v. School District of Derry Township. Order reversed.

COUNSEL

Edward S. Stiteler, with him John M. Horn, and Smith, Best & Horn, for appellants.

Robert J. Milie, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Bok

Opinion BY MR. JUSTICE BOK.

In October, 1958, the School District of Derry Township, Westmoreland County, condemned a tract of land owned by the appellant plaintiffs.

The School District then filed a petition for a Board of View, and this was granted. In due course of time the viewers saw the property and held a hearing, with the result that in January, 1959, they filed their report and awarded the appellants $13,500. This report was confirmed nisi.

Within thirty days appellants appealed from the report of the viewers by filing a complaint in trespass in the Court of Common Pleas. The School District filed preliminary objections alleging insufficiency of the complaint because its affidavit failed to meet the requirement of the Act of June 13, 1874, P.L. 283, § 2, 26 PS §§ 61 and 62. The court below sustained the preliminary objections, ordered the complaint stricken, and confirmed the report of the viewers absolutely. The plaintiffs have appealed.

The sole question is the applicability of the Act of 1874. Section 1 of this Act asserts that where an appeal is not provided for by existing laws, it may be taken to the Court of Common Pleas of the proper county within thirty days. This was done. Section 2 then provides: "Any appeal taken pursuant to this act shall be signed by the party or parties taking the same, or by his or their agent or attorney, and shall be accompanied by an affidavit of the party appellant, or of his or their agent or attorney, that the same is not taken for the purpose of delay, but because the affiant firmly believes that injustice has been done."

The affidavit to the complaint reads: "Personally appeared before me, the undersigned authority, Steve J. Durika, who being duly sworn according to law, deposes and says that he is one of the plaintiffs in the within and foregoing complaint, and that the facts set forth therein are true and correct to the best of his knowledge, information and belief."

It is obvious that the affidavit to the complaint does not comply with what is required by the Act of 1874. In 1913, two years before the Practice Act of May 14, 1915, P.L. 483, 12 PS § 391, we decided the case of Butler Engine & Foundry Co. v. Butler County, 238 Pa. 180 (1913), 85 A. 1112. In this case we flatly upheld the Act of 1874 and struck off an appeal from a Board of View because the affidavit did not follow the shibboleth of the Act. Our reason was that while: "This may be said to be an extreme case of strict construction... the appeal... was a purely statutory remedy, allowed only when statutory requirements have been complied with, among others, the filing of an affidavit in a prescribed form." We accordingly held the statutory requirements jurisdictional and the Act mandatory.

For the same reason - that of doing strict obeisance to the statutes - we can now obviate this dry technicality, for statutes come ...


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