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O'KEEFE v. ALTOONA CITY AUTHORITY (05/21/73)

decided: May 21, 1973.

O'KEEFE, ET UX.
v.
ALTOONA CITY AUTHORITY, ET AL.



Appeal from the Order of the Court of Common Pleas of Blair County in case of Timothy G. O'Keefe and Magdeline J. O'Keefe, husband and wife, v. Altoona City Authority and/or City of Altoona, No. 107 1/2 October Term, 1971.

COUNSEL

T. Dean Lower, for appellants.

M. David Halpern, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr. Dissenting Opinion by Judge Kramer. Judge Blatt joins in this dissenting opinion.

Author: Crumlish

[ 9 Pa. Commw. Page 398]

The sole issue which we are called upon to resolve here is whether appellants' petition for the appointment

[ 9 Pa. Commw. Page 399]

    of viewers should have been refused by the Court of Common Pleas of Blair County because of the interdiction of the statute of limitations.

On March 29, 1956, by agreement and with the consent of appellants, employees of the city of Altoona (City) entered upon appellants' land and installed an underground water line and a surface manhole covering.*fn1 The arrangement between the City and appellants called for the City to assess damages and provide for compensation at an undetermined date. No declaration of taking had been filed nor had condemnation proceedings of any kind been instituted.

After the work was completed, neither party acted until November 5, 1971 when appellants petitioned for the appointment of viewers.*fn2 The City filed preliminary objections contending that this petition was barred by the statute of limitations.

After hearing, the court below sustained the preliminary objections and dismissed the petition. Hence this appeal.

It is clear that if a corporate body, clothed with the power of eminent domain, enters upon and appropriates for its own use the private property of another the landowner may treat this as a valid condemnation even though the statutorily prescribed condemnation procedure was not followed. Rosenblatt v. Pa. Turnpike Commission, 398 Pa. 111, 157 A.2d 182 (1959). Moreover, when a taking has been effected without the condemnation

[ 9 Pa. Commw. Page 400]

    procedure having been followed, the landowner may petition the court for the appointment of viewers to assess and award damages. Griggs v. Allegheny County, 402 Pa. 411, 168 A.2d 123 (1961), rev'd on other grounds, 369 U.S. 84 (1962).

Appellee, in support of its preliminary objections, refers us to Act of April 3, 1956, P.L. 1366, § 3, 26 P.S. § 153, which provides: "In any case whereby the exercise of the power of eminent domain a political subdivision or authority has become entitled to the possession of private land, property or material for any interest therein prior to the effective date of this act, a petition for the appointment of viewers for the assessment of damages may be filed or an action for damages may be brought within six years from such date and not thereafter. All claims shall be forever barred after the expiration of the period of six years." This section, according to appellee, bars this action because the prescribed period would have expired in April of 1962. Language in another section of that act, however, provides that "[t]his act shall not apply to petitions for the appointment of viewers for the assessment of damages or to actions for damages as the result of the exercise of the power of eminent domain by any authority unless (1) a copy of the resolution by which such authority exercises its power of eminent domain is personally served on the owner of the affected property, or (2) if the owner cannot be served personally, service of a copy of the resolution is made on the owner by registered or other mail service . . . or (3) if the ...


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