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PHILADELPHIA v. READING COMPANY (10/04/71)

decided: October 4, 1971.

PHILADELPHIA
v.
READING COMPANY



Appeal from the Order of the Court of Common Pleas of Philadelphia County, No. 8974, June Term, 1969, in case In the Matter Of: To Authorize the Selection and Appropriation of a Plot of Ground with the Improvements thereon, Situate on the Northwest Corner of 16th and Callowhill Streets, for Public Welfare Purposes. Appeal transferred September 14, 1970, to the Commonwealth Court of Pennsylvania from the Supreme Court of Pennsylvania.

COUNSEL

Matthew W. Bullock, Jr., First Deputy City Solicitor, with him John B. Day, Assistant City Solicitor, and Levy Anderson, City Solicitor, for appellant.

C. Laurence Cushmore, Jr., with him White and Williams, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino and Mencer. Opinion by Judge Manderino.

Author: Manderino

[ 3 Pa. Commw. Page 325]

The City of Philadelphia in 1969, pursuant to its power of eminent domain, condemned a plot of land on the northwest corner of Sixteenth and Callowhill Streets in Philadelphia. The record title owner listed on the declaration of taking, filed on July 3, 1969, was the Reading Company. Written notice of the condemnation was given to the Reading Company and the owners of a possible reversionary interest which is not at issue here.

Prior to the filing of the declaration of taking, Reading Company entered into an agreement of sale for the land in question with McCullough Howard & Co., Inc., but no deed transfer had occurred. After the condemnation, McCullough Howard & Co., Inc., by its attorney, on August 13, 1969, entered an appearance on the record of this action, as equitable owner under the agreement of sale with the Reading Company.

On December 1, 1969, Reading Company and McCullough Howard & Co., Inc., by their attorneys of record, tendered possession of the land in question to the City of Philadelphia pursuant to the Eminent Domain Code. The condemnees, at the same time they

[ 3 Pa. Commw. Page 326]

    tendered possession, requested immediate payment of estimated just compensation from the condemnor. When no payment was made, Reading Company petitioned the lower court for a rule to show cause why the City of Philadelphia should not be required to file a declaration of estimated just compensation. The trial court made the rule absolute and on March 24, 1970, entered an order requiring the City, as Condemnor, to file a declaration of estimated just compensation. Following this order, an appeal was filed in the Supreme Court by the City of Philadelphia. Pursuant to the Appellate Court Jurisdiction Act (Act of July 31, 1970, P.L. , Act No. 223, 17 P.S. 211.101 et seq.), this case was transferred to the Commonwealth Court.

In this action, the Reading Company seeks to have this appeal quashed on the grounds that the trial court's order of March 24, 1970 was not an appealable order. The Eminent Domain Code provides for a right of appeal only "from any final order or judgment of the court of common pleas." (Act of June 22, 1964, P.L. 84, Art. V, § 523, 26 P.S. 1-523 (1971)). The City contends that the order of the trial court, requiring it to file a declaration of estimated just compensation, is a final order. We do not agree that the order appealed from is a final order.

Section 407 (b) of the Eminent Domain Code (Act of June 22, 1964, P.L. 84, Art. V, § 407, 26 P.S. 1-407 (b) (1971)) provides: "If within sixty days from the filing of the declaration of taking the condemnor has not paid just compensation . . ., the condemnee may tender possession or right of entry in writing and the condemnor shall thereupon make payment of the just compensation due such condemnee as estimated by the condemnor. If the condemnor fails to make such payment the court, upon petition of ...


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