Appeal from the Order of the Court of Common Pleas of Luzerne County in case of Ben Hafetz and Hannah Hafetz, his wife, v. Redevelopment Authority of the City of Wilkes-Barre, No. 1144 January Term, 1972.
Donald D. McFadden, with him Flanagan, Doran, Biscontini & Shaffer, for appellant.
Sol Lubin, with him Hugh F. Mundy, and Winkler, Danoff, Lubin and Toole, for appellees.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer.
[ 19 Pa. Commw. Page 203]
On November 3, 1971, Benjamin Hafetz and Hannah Hafetz, husband and wife, entered into an agreement for the sale of a plot of land, with dimensions of 40 feet by 100 feet, to the Redevelopment Authority of the City of Wilkes-Barre (Redevelopment Authority). Thereafter, contrary to the agreement, they refused to convey their property to the Redevelopment Authority, and on January 17, 1972, the Redevelopment Authority filed a declaration of taking relative to the Hafetz property.
A board of view was appointed, and following a hearing on April 25, 1972, the board of view filed its report on August 22, 1972 and made an award to Mr. and Mrs. Hafetz of $500 for partial reimbursement of reasonable expenses actually incurred for appraisal and attorney fees and declared that the $21,500 already received by Mr. and Mrs. Hafetz under the agreement for sale was just compensation for their land. No appeal to the Court of Common Pleas of Luzerne County from the decision of the viewers was taken by the property owners until July 11, 1973.
On June 1, 1973, counsel for the Hafetzes requested the board of view to hold a second hearing for the purpose of passing on the claims of the tenants of the property for special damages for relocation and business removal expenses. The board of view complied with this request, a hearing was held on June 29, 1973, and on July 3, 1973 it filed its report titled "Claim for Damages by Tenants" and made an award of $5,003.50.
On September 10, 1973, the Redevelopment Authority filed with the Court of Common Pleas of Luzerne County a motion to quash the Hafetz appeal from the award of the board of view filed August 22, 1972, for the reason that it was untimely filed. The parties agreed that the
[ 19 Pa. Commw. Page 204]
amount of damages should be determined by a judge without a jury, and a trial date of November 27, 1973 was set.
At the inception of the trial, counsel for the Redevelopment Authority requested a ruling on its motion to quash the appeal. The trial judge denied the motion to quash, allowed an exception to be noted for the Redevelopment Authority, and proceeded with the trial. On December 13, 1973, the trial judge rendered a verdict "in favor of the Plaintiff, Hannah Hafetz, Executrix of the Estate of Ben Hafetz, deceased, against the Defendant, Redevelopment Authority of the City of Wilkes-Barre, in the sum of Twenty-Five Thousand, Five Hundred ($25,500.00) Dollars. . . ."*fn1
Four days after the verdict, on December 17, 1973, the Redevelopment Authority filed a motion for new trial, offering as one reason in support thereof that the appeal was filed "approximately eleven (11) months after the filing of the Board of View Report and, therefore, was not timely." On February 11, 1974, the attorney for Hafetz filed a motion to quash the Redevelopment Authority's motion for new trial for the reason that it was an improper and inappropriate pleading and that the Redevelopment Authority had not filed exceptions to the trial judge's verdict. On February ...