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MCCONNELL APPEAL (01/03/68)

decided: January 3, 1968.

MCCONNELL APPEAL


Appeals from order of Court of Common Pleas of Chester County, Nos. 12677, 12678, 12679 and 12680 of 1966, in re approval of bond of the Manufacturers Light and Heat Company and surety under right of eminent domain.

COUNSEL

Fred T. Cadmus, III, with him John E. Good and Miles Warner, for appellants.

Robert S. Gawthrop, Jr., with him Gawthrop & Greenwood, for appellee.

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

Author: Cohen

[ 428 Pa. Page 271]

On September 19, 1966, appellee, a natural gas company, presented to the court below four petitions which sought approval of condemnation bonds in unlimited amounts with approved surety, in connection with the condemnation of easements across the land of four property owners (appellants herein). Each appellant filed exceptions to the petition alleging, inter alia, that the taking was unreasonable, arbitrary and capricious, and otherwise challenging appellee's right to condemn the property. On September 23, 1966 the court below entered an order approving the bond. From that order appellants have appealed.

Appellee has filed motions to quash the appeals on the ground that the order appealed from was interlocutory.

[ 428 Pa. Page 272]

Indeed, in Seligsohn Appeal, 410 Pa. 270, 189 A.2d 746 (1963), this Court held that an order or decree approving a condemnation bond is purely interlocutory and not appealable. That is so where, as we stated in Seligsohn, "the entire thrust of appellant's argument . . . is directed to the inadequacy and insufficiency of the . . . bond . . ." 410 Pa. at 281, 189 A.2d 752 (Emphasis in original). But in the present matter, appellants do not question the adequacy of the bond. Rather, they have challenged appellee's right to condemn their property. Accordingly, appellee's motion to quash must be dismissed.

In its petition for approval of the bond, appellee averred that it was authorized to exercise the right of eminent domain by reason of the natural gas companies Act, Act of May 29, 1885, P. L. 29, § 10, 15 P.S. § 3549. That Act, which grants to natural gas companies the right of eminent domain, does not provide a procedure whereby a natural gas company's purported condemnation may be challenged.*fn1 Despite the fact that the Act of 1885 does not provide a method for testing the power of a natural gas company to condemn private property, courts of equity have been available to attack the lawfulness and propriety of condemnation proceedings. Snitzer, Pennsylvania Eminent Domain, § 406-1. Otherwise, the Act would be unconstitutional for failing to provide a procedure by which a property owner may challenge the taking of his land.

[ 428 Pa. Page 273]

Heretofore, equity has served to deter natural gas companies from abusing their power of eminent domain and to protect the constitutional rights of condemnees, but with the enactment of the Eminent Domain Code of 1964, there is no longer any need for equity to perform these functions. Section 406 provides that within thirty days after service of the notice of condemnation, the condemnee may file preliminary objections to the declaration of taking. These preliminary objections are made the exclusive method of challenging, inter alia, the power of the condemnor to appropriate the condemned property. In Valley Forge Golf Club v. Upper Merion Township, 422 Pa. 227, 221 A.2d 292 (1966), we indicated that the Code had completely displaced the courts of equity as the forum for condemnation matters and observed that the procedural safeguards of the Code were as effective as those of a court of equity. Accordingly, appellants should properly have filed preliminary objections to appellee's petitions asking approval of the condemnation bonds, which petition should be regarded as the declaration of taking. In Greenwald Appeal, 424 Pa. 318, 227 A.2d 166 (1967), we held that § 901 of the Code preserved the natural gas companies Act, supra, only with respect to the power to condemn and the simpler procedure for condemnation. We further held in Greenwald that in a case involving a condemnation pursuant to the Act of 1885, the timeliness of an appeal from the report of a board of viewers is determined ...


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