Appeal from order of Court of Common Pleas of Bucks County, Jan. T., 1967, No. 857, in re condemnation of L.R. 281, Par. 12-A Middletown Township, etc., being property of Langhorne Spring Water Company.
William H. Rivoir, Jr., for appellant.
Robert L. White, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones.
The Commonwealth of Pennsylvania, acting through the Department of Highways, condemned certain parcels of land of the Langhorne Spring Water Company [Water Company], Middletown Township, Bucks County, as of May 14, 1963, revised July 13, 1964. The Court of Common Pleas of Bucks County, on January 30, 1967, appointed a board of view, which, after hearing, made an award to the Water Company in the amount of $81,668.00, the report of the board of view being filed on March 5, 1968. On March 28, 1968 -- twenty-three days after the filing of the award of the board of view -- the Commonwealth, acting through the Department of Highways, filed an appeal in the Court of Common Pleas of Bucks County.*fn1
By a letter dated April 4, 1968 -- seven days after filing the appeal -- the Commonwealth gave notice to the Water Company's lawyer of the appeal.*fn2
The Water Company filed preliminary objections in the nature of a petition raising the question of jurisdiction and a motion to quash or strike off the appeal on May 29, 1968.*fn3 The preliminary objections and the motion to quash were based on two reasons: 1. a copy of the appeal was not served on the appellee within five days after the date of filing the appeal, as provided by Article V, § 516(b) of the Eminent Domain Code, supra; 2. no proof of service of a copy of the appeal had been filed.*fn4
Initially, it must be noted that the appeal of the Commonwealth from the board of view to the Court of Common Pleas was filed in strict accordance with Section 515 of the Eminent Domain Code, supra, 26 P.S. § 1-515. See: Miller Estate v. Department of Highways, 424 Pa. 477, 481-82, 227 A.2d 679 (1967).
The court below, by its order, dismissed the Water Company's preliminary objections, holding that the provisions of Section 516(b) of the Eminent Domain Code (26 P.S. § 1-516(b)) were directory as to time and not mandatory.*fn5 Section 516(b), provides: "The appellant shall serve a copy of the appeal on all other parties within five days after filing the same. Proof of service of a copy of the appeal shall be filed by the appellant." From the order dismissing the Water
Company's preliminary objections the instant ...