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DUNK v. MANUFACTURERS LIGHT AND HEAT COMPANY (12/29/71)

decided: December 29, 1971.

DUNK, ET UX.
v.
THE MANUFACTURERS LIGHT AND HEAT COMPANY



Appeal from the Order of the Court of Common Pleas of Chester County in case of In Re: Approval of Bond of Manufacturers Light and Heat Company and Surety Under Right of Eminent Domain -- Charles S. Dunk and Bella M. Dunk, His Wife, No. 12689, 1966.

COUNSEL

Charles S. Dunk and Bella M. Dunk, appellants in propria personna.

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

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino and Mencer. Judge Rogers disqualified himself. Opinion of Judge Wilkinson in Support of Affirmance. President Judge Bowman and Judge Kramer join in this opinion. Opinion by Judge Mencer in Support of Reversing the Lower Court. Judges Crumlish and Manderino join in this opinion in support of reversing the lower court.

Author: Per Curiam

[ 4 Pa. Commw. Page 128]

After argument before the Court en banc, the Court being equally divided, the order of the lower court is hereby affirmed.

Disposition

Affirmed.

Opinion of Judge Wilkinson in Support of Affirmance:

On October 14, 1966, appellee filed a petition for approval of its condemnation bond for a right of way across appellants' as well as other property. Appellants, as well as other property owners, filed objections to the bond, raising questions involving the propriety of the taking. Appellants entitled theirs "Exceptions in the nature of Preliminary Objections to the Purported Taking of Land". As stated by the court below, "Notwithstanding the filing of these exceptions or objections, we approved the bond by our order entered the same day." The other property owners appealed the approval of the bond raising the issue that the lower court had not properly considered the question of the necessity for the taking or its arbitrary, capricious and unreasonable nature. Although represented by the same attorney,

[ 4 Pa. Commw. Page 129]

    at least at the time the exceptions were filed and the bond approved, the appellants here did not appeal the approval of the bond filed to cover the condemnation of their property.

The lower court filed an opinion in the bond approval cases that were appealed. In Re: Approval of Bond of the Manufacturers Light and Heat Company, 15 Chester County 106 (1966). The Supreme Court, with the Court divided 4-3, reversed the lower court and the other property owners were given thirty days to renew their preliminary objections so that the court could properly pass upon them in line with the decision. McConnell Appeal, 428 Pa. 270, 236 A.2d 796 (1968). Had the appellants here been appellants there, the cases appearing to be essentially, if not identically, the same, there can be little doubt that the appellants would have been permitted to renew their objections within the thirty-day limit. It might be interesting to speculate what the lower court would have done had appellants renewed their preliminary objections within the same thirty-day period allowed the property owners who appealed. However, it would be mere speculation since they did not ...


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