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GREENWALD APPEAL (03/14/67)

decided: March 14, 1967.

GREENWALD APPEAL


Appeal from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1964, No. 806, sur Jan. T., 1964, No. 1367, in re appeal of John A. Greenwald and Edith M. Greenwald from award of Board of Viewers as a result of condemnation of their property in Jefferson Borough by Equitable Gas Company.

COUNSEL

Thomas E. Whitten, for appellants.

Milton W. Lamproplos, with him Eckert, Seamans & Cherin, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Eagen dissents.

Author: O'brien

[ 424 Pa. Page 318]

Equitable Gas Company condemned a right-of-way for a gas pipeline over property owned by appellants,

[ 424 Pa. Page 319]

John A. Greenwald and Edith M. Greenwald. After a proper resolution and a tendering and acceptance of bond, the line was constructed. The appellants and Equitable were unable to agree on the amount of the damages and appellants, therefore, filed a petition for the appointment of viewers. The viewers' report was filed on July 1, 1964, and appellants filed an appeal from the report of the board of viewers on July 23, 1964.

Equitable filed a petition to quash the appeal, contending that § 10 of the Natural Gas Companies Act of May 29, 1885, P. L. 29, 15 P.S. § 2034, limited the time for filing an appeal from the viewers' report to 20 days. The court below agreed with Equitable's contention and quashed the appeal. This appeal followed.

We are concerned here with the very narrow legal question of whether the time allowed for appealing the decision of the viewers is limited to 20 days by the aforementioned section of the Natural Gas Companies Act of 1885, or to 30 days, by Article V, § 515 of the Eminent Domain Code of 1964, 26 P.S. § 1-515. The latter section provides that "Any party aggrieved by the decision of the viewers may appeal to the court of common pleas within 30 days from the filing of their report." The Natural Gas Companies Act provides that "Either party may appeal from the report of the viewers within 20 days after the filing thereof to the court of common pleas . . .".

[ 424 Pa. Page 320]

The two quoted provisions of the statutes are obviously at odds, and we must determine which provision governs the instant appeal. In this determination, we must look to Article IX of the Eminent Domain Code. Section 901, 26 P.S. § 1-901, is a saving clause which, in its pertinent part, provides, with reference to the Eminent Domain Code, "Nor, except as to the measure of damages prescribed by Article VI hereof, shall it repeal, modify or supplant any law insofar as Page 320} it confers the authority or prescribes the procedure for condemnation of rights-of-way or easements for occupation by water, electric, gas, oil and/or petroleum products, telephone or telegraph lines used directly or indirectly in furnishing service to the public." (Emphasis supplied) Section 902, 26 P.S. § 1-902, repeals specifically a number of Acts of the General Assembly, but the Natural Gas Companies Act of 1885 is not included among the statutes specifically repealed. Section 903, 26 P.S. § 1-903, is a general repealer and provides that "All other acts and parts of acts inconsistent with the provisions of this act are hereby repealed." (Emphasis supplied)

The pertinent provisions of the Natural Gas Companies Act are contained in § 10 of that Act, 15 P.S. § 2031 et seq. 15 P.S. § 2031 grants the right of Eminent Domain for pipelines, for the distribution of gas, to gas companies. 15 P.S. § 2032 provides for burial of the pipes in certain situations. 15 P.S. § 2033 provides that the Company and the condemnee shall attempt to agree on damages and for the tender of a bond in the event of a failure to agree. That section further provides for the presentation of a bond to the court of common pleas where the owner refuses to accept the bond. The section concludes: "Upon the approval of the bond and its being filed, the right of the corporation to enter upon the enjoyment of its easement shall be complete." (Emphasis ...


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