Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Airportels, Inc. v. City of Philadelphia, No. 3516 May Term, 1973.
Wanda P. Chocallo, Assistant City Solicitor, with her Martin Weinberg, City Solicitor, for appellant.
John R. Padova, with him Richard D. Solo and Solo, Bergman & Padova, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer.
[ 14 Pa. Commw. Page 618]
A single procedural question is involved in this appeal. Does a governmental body have a right to file an answer to a petition for the appointment of viewers filed by a property owner, and alleging a de facto taking or compensable injury to his property, following the overruling of the governmental body's preliminary objections to the petition? The Court of Common Pleas of Philadelphia in the instant case answered the question in the negative.
On May 24, 1973, Airportels, Inc., filed a petition for appointment of viewers, seeking redress from the City of Philadelphia (City) for damages to its leasehold property allegedly resulting from expansion of the Philadelphia International Airport by the City. On June 6, 1973, the lower court acted on the petition and appointed viewers. On July 24, 1973, the City filed preliminary objections, asserting (1) that the Court lacked jurisdiction to entertain the petition and (2), by demurrer, that petitioner failed to state a cause of action.
On December 28, 1973, after argument, the court below dismissed the City's preliminary objections and directed that the matter proceed before the viewers. The
[ 14 Pa. Commw. Page 619]
City has not appealed from that order.*fn1 However, the City did, on January 28, 1974, file what it denominated as a petition for leave to file an answer. This petition advanced a single contention; namely, that the City desires to raise questions of fact by an answer to the petition for appointment of viewers, pursuant to Pa. R.C.P. No. 1028(d).*fn2 The court below, on February 19, 1974, denied the City's petition for leave to file an answer. It is from this order of denial that the City here appeals. Airportels, Inc., has moved to quash the appeal.
We view the City's predicament to be the result of (1) misinterpreting the nature of preliminary objections in an eminent domain proceeding involving an alleged de facto taking and (2) failing to appeal the order of December 28, 1973 which dismissed the preliminary objections that were filed.
In Jacobs v. Nether Providence Township, 6 Pa. Commonwealth Ct. 594, 597-99, 297 A.2d 550, ...