Appeal from order of Court of Common Pleas of Allegheny County, April T., 1965, No. 3483, in re petition of Margaret A. Wiegand for appointment of viewers.
Harold R. Schmidt, with him Roger Curran, and Rose, Schmidt and Dixon, for appellant.
Anthony V. DeCello, Assistant County Solicitor, with him John W. Mamula, Second Assistant County Solicitor, and Maurice Louik, County Solicitor, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Dissenting Opinion by Wright, P. J. Watkins and Cercone, JJ., join in this dissenting opinion.
[ 214 Pa. Super. Page 372]
In October 1938 certain land owned by appellant's father was condemned by the Board of Commissioners and Court of Common Pleas of Allegheny County. Notice of condemnation was given by newspaper publication only and no further action was taken until 1956. Appellant who became the sole owner in 1958 received actual notice of the condemnation on February 6, 1956, when she was informed by letter from the Director of the Department of Works of Allegheny County that the property was within the right of way of a street-widening project. Shortly thereafter, entry was made
[ 214 Pa. Super. Page 373]
and construction was completed in November 1957. No payment has ever been tendered by Allegheny County.
On March 18, 1965, appellant filed a petition for appointment of viewers and requested a rule to show cause why the petition should not be granted. After argument, the rule was refused on the ground that the claim was barred by the statute of limitations. The Act of 1891, P. L. 109, as amended, 12 P.S. § 43, which was in effect prior to 1964, provides: "Petitions for the assessment of damages for the opening or widening of any street . . . may be filed . . . within the period of six years from the final confirmation of a report or entry of a decree or order opening the said street . . . or within six years from the date of notice of the intended opening of the same . . . ." Assuming that this statute did not begin to run until February 6, 1956, when appellant received actual notice, her claim was barred after February 6, 1962.
Appellant first contends that the statute of limitations is an affirmative defense which can be raised only in a responsive pleading under "New Matter." Pa. R. C. P. 1030. If Rule 1030 is applicable in proceedings for the appointment of viewers, appellant is correct in suggesting that consideration of the statute of limitations was premature. The Eminent Domain Code of 1964, Art. V, § 525 authorizes the Supreme Court to promulgate rules with respect to matters of procedure under the Code. The Comment to § 525 states: "The procedural provisions of Article V . . ., which preferably should be governed by rules rather than by statute, are included so that there will be no possible hiatus in practice and procedure between the effective date of this act and the promulgation of Rules of Civil Procedure which it is contemplated will be promptly promulgated by the Supreme Court and the procedural provisions of this act suspended."
[ 214 Pa. Super. Page 374]
As the Supreme Court has not promulgated rules applicable to appointment of viewers, the statutory procedure remains in effect and Rule 1030 does not prevent consideration of the statute of limitations in the manner followed by the court below.
On the merits, appellant alleges that § 524 of the Eminent Domain Code of 1964, rather than the Act of 1891, provides the limitations period governing her right to obtain appointment of viewers. Section 524 provides that the six year limitation period begins to run from the date that a tender of payment of compensation is made. As no tender has been made in this case, ...