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WERNER v. COMMONWEALTH (01/05/65)

decided: January 5, 1965.

WERNER
v.
COMMONWEALTH, APPELLANT. COMMONWEALTH V. BURNS, APPELLANT



Appeal from order of Court of Common Pleas of Lawrence County, Sept. T., 1963, No. 155, in case of Harry A. Werner and Astrid M. Werner, his wife, and Mahoning Valley Sand Company v. Commonwealth of Pennsylvania, Department of Highways.

COUNSEL

George R. Specter, Assistant Attorney General, with him John R. Rezzolla, Chief Counsel, and Walter E. Alessandroni, Attorney General, for Commonwealth, appellant.

Donald R. McKay, with him Martin E. Cusick, Errol Fullerton, and Cusick, Madden, Joyce, Acker and McKay, for appellees.

James H. Stewart, Jr., with him J. Ross McGinnes, and Nauman, Smith, Shissler & Hall, for appellants.

Raymond Miller, Deputy Attorney General, with him Walter E. Alessandroni, Attorney General, for Commonwealth, appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Dissenting Opinion by Mr. Chief Justice Bell. Mr. Justice Musmanno joins in this dissenting Opinion.

Author: Cohen

[ 416 Pa. Page 357]

Both these cases involve appeals from dismissals by lower courts of exceptions taken to reports filed by boards of viewers in condemnation proceedings. Pursuant to the statutes involved the exceptions in the Werner case were raised in the quarter sessions court, June 1, 1945, P. L. 1242, §§ 303, 304, 36 P.S. §§ 670-303, 304 while the exceptions in the Burns case were raised in the court of common pleas, July 15, 1919, P. L. 976,

[ 416 Pa. Page 358]

§ 5, 71 P.S. § 1575. In both cases, as was their right under these same statutes, the parties taking exceptions to the viewers' report also took appeals to courts of common pleas, which appeals are heard de novo. Snyder v. Commonwealth, 412 Pa. 15, 21, 192 A.2d 650, 653 (1963).

In the Werner case the exception to the report was based upon the viewers' refusal to make a special finding of fact whether or not certain property was considered by the viewers in determining damages. The exception was dismissed on the ground that the question -- whether the unity of use doctrine applied to the property in question -- was a mixed one of law and fact and should be raised at the trial of the appeal and not by exception. In the Burns case there were three bases for exceptions: (1) that the condemnation of a mere avigation easement was unlawful because the statute does not permit the condemnor to take less than all the property owner's interest in the land, (2) that although the facts constituted a taking of the entire fee only an easement was condemned and (3) that the viewers' report did not contain a schedule of damages, or, if it did, the damage to the property subjacent to the avigation easement was not reflected. The court dismissed exception (1) on the ground that the statute countenanced the condemnation of an easement and (2) and (3) on the ground that the matters raised would be disposed of by the appeal.

The dismissals of the exceptions in both cases were interlocutory orders and therefore these premature appeals must be quashed. In both cases appeals have been taken to the common pleas court from the viewers' reports. The liabilities of the condemnors will not be determined until these appeals are concluded. Under such circumstances the mere dismissal of exceptions cannot be said to constitute a final order or, in any sense, to terminate the litigation between the parties.

[ 416 Pa. Page 359]

This has been the rule since Pennsylvania Steel Company's Appeal, 161 Pa. 571, 29 Atl. 294 (1894). We see no reason to change the rule. When a party has taken both an appeal from and an exception to a viewers' report, no appeal may be taken from the lower court's dismissal of exceptions until the conclusion of the appeal. At that time the ruling on exceptions and/or the judgment in the appeal can be reviewed here if the proper party so desires. This is the best way to effect the "policy of the law . . . to preclude piecemeal determinations and the consequent protraction of litigation," Sullivan v. Philadelphia, 378 Pa. 648, 649, ...


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