Appeal from judgment of Court of Common Pleas of Washington County, May T., 1967, No. 290, in re condemnation of Legislative Route 257, Section 4 R/W, Robinson Township, Washington County. Edward Kobulnicky et ux. v. Commonwealth.
Lee C. McCandless and Nathan Schwartz, with them Frank P. Krizner, Edward J. Abes, and McCandless, Chew & Krizner, and Schwartz & Schwartz, for appellants.
Andrew L. Weil, Special Assistant Attorney General, with him Guy S. Mamolito, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and William C. Sennett, Attorney General, for Commonwealth, appellee.
Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Dissenting Opinion by Mr. Justice Cohen.
Thirty acres of the appellants' property, together with a nine-room residence, a smoke house and four small sheds located on the premises, located in Washington County, were condemned for the purpose of building an interstate limited-access highway. The jury returned a verdict of $30,000 for damages to the real estate and $3,000 for moving expenses, which sums exceeded the award of the Board of Viewers, which had awarded the appellants $23,500 for the damages to the real estate and $1,600 for removal expenses of the personalty.
The Washington County Court refused to grant a new trial by order dated July 15, 1969, and judgment was entered on the verdict on August 11, 1969.
Sixty-five days later, on October 16, 1969, appellants filed their notice of appeal. The Act of June 22, 1964, Special Sess., P. L. 84, Art. V, § 523, 26 P.S. 1-523, provides that in condemnation cases "[e]ither party may appeal to the Supreme . . . Court . . ., from any final
order or judgment of the court of common pleas within forty-five days from the entry thereof." The Commonwealth filed a motion to quash this appeal on the grounds that it had been filed after the period allowed by the statute.
Appellants seek to avoid the effects of the statute by contending that the Commonwealth's failure to pay the jury fee is fatal to the entry of a final judgment and, in any event, they received no notice of the entry of judgment.
The Act of October 11, 1967, P. L. 437, § 2, 17 P.S. 1593.3(b) provides as follows: ". . . The prothonotary shall not be required to enter on docket any suit or action or order of court or enter any judgment thereon or perform any services whatsoever for any person, political subdivision or the Commonwealth until the requisite fee is paid." This language does not forbid the prothonotary to take the actions indicated by the statute, but merely permits him to refuse to take those actions until the requisite fee is paid. In the instant case a jury fee of $16.00 plus $1.90 for the prothonotary, or a total of $17.90, was in fact taxed as costs in the case by the prothonotary, even though he did not collect that amount in advance of entering judgment.
Moreover, the Act of March 29, 1805, P. L. 183, as amended, 12 P.S. 1051, which appellants cite, requires the following: "Whenever any verdict in a civil action or cause shall be taken, the plaintiff or defendant for whom the same shall be given shall forthwith pay to the prothonotary the sum of four dollars, which shall be taxed with the costs, and afterwards repaid by the party against whom such verdict shall be given, if the same be a verdict wherein costs be recoverable, for the use of the party so advancing ...