Appeal from order of Court of Common Pleas of Delaware County, No. 9702 of 1965, in re condemnation of right of way of Legislative Route 1018, Section 4, Samuel D. Miller, owner, et al.
Basil C. Clare, for appellant.
Jay R. Braderman, Assistant Attorney General, with him M. David Halpern, Assistant Attorney General, John R. Rezzolla, Chief Counsel, Department of Highways, and Edward Friedman, Attorney General, for Commonwealth, appellee.
Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones.
The Commonwealth of Pennsylvania, Department of Highways, effected a condemnation of certain property of the Estate of Samuel D. Miller, (condemnee),
in Delaware County.*fn1 On October 13, 1965, on petition of the Commonwealth, the Court of Common Pleas of Delaware County appointed a board of view, (Board). After hearing, the Board filed its report on May 3, 1966, wherein it awarded the condemnee damages of $70,500. On May 31, 1966, the Commonwealth filed an appeal to the Court of Common Pleas of Delaware County.
The condemnee then filed preliminary objections to the Commonwealth's appeal on three grounds: (1) that, because the appeal failed to raise any objections to the law or facts upon which the Board's report was predicated, the appeal violated Article V, § 515 of the Code;*fn2 (2) that a copy of the appeal was not properly served within five days after filing the appeal; (3) that a proof of service of a copy of the appeal was not properly filed. The court below overruled the preliminary objections. From its order the condemnee has appealed.
Initially, we must consider the Commonwealth's motion to quash this appeal. Section 517 of the Code*fn3 provides that: "A decree [of the court] confirming, modifying or changing the report [of the viewers] shall constitute a final order." It is obvious that the order in the case at bar did not confirm, modify or change the report of the Board; therefore, § 517 does not apply. Section 523 of the Code*fn4 provides that: "Either party may appeal to the Supreme or Superior Court, as the case may be, from any final order or judgment of the court of common pleas within forty-five days from the entry thereof." (Emphasis added).
Clearly, the instant order is not a final order within the contemplation of § 523. Not being a final order, in the absence of a statute allowing an appeal from such an order, ordinarily an appeal would not lie. Branna Construction Corp. v. West Allegheny Joint School Authority, 414 Pa. 251, 199 A.2d 414 (1964); Reading Company v. Willow Development Co., 407 Pa. 469, 181 A.2d 288 (1962). An order dismissing preliminary objections is an interlocutory order from which no statute provides an appeal: Mass. Bonding & Insurance Co. v. Johnston & Harder, Inc., 330 Pa. 336, 199 A. 216 (1938); East & West Coast Service Corp. v. Papahagis, 340 Pa. 575, 17 A.2d 873 (1941).
However, the condemnee urges that this appeal lies under the Act of March 5, 1925, P.L. 23, 12 P.S. § 672 which provides that orders which involve questions of jurisdiction, even though interlocutory, are appealable.*fn5 The thrust of the condemnee's argument is that the question of whether an appeal has been properly taken from the Board to the common pleas court involves an issue of jurisdiction. In Philadelphia Redevelopment Authority Appeal, 413 Pa. 339, 196 A.2d 376 (1964), the Authority had appealed to the common pleas court from an award of a board of view which made an "overall assessment of the loss incurred" and allocated the damages between the landowner and one of his tenants; the Authority took only one appeal to the common pleas court and a motion to quash that appeal was filed which alleged that separate appeals should have been taken from each award; ...