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COMMONWEALTH PENNSYLVANIA v. CARMEN D. AMBROSIA AND ROSE M. AMBROSIA (03/12/76)

decided: March 12, 1976.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT
v.
CARMEN D. AMBROSIA AND ROSE M. AMBROSIA, APPELLEES



Appeal from the Order of the Court of Common Pleas of Lawrence County in case of Commonwealth of Pennsylvania, Department of Transportation v. Carmen D. Ambrosia and Rose M. Ambrosia, husband and wife, No. 5-C of 1972.

COUNSEL

Jeffrey L. Giltenboth, Special Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellant.

Robert D. George, for appellees.

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

Author: Blatt

[ 24 Pa. Commw. Page 9]

This appeal raises the sole issue of whether or not the Commonwealth of Pennsylvania, Department of Transportation (PennDOT) has received sufficient notice of the filing of a report of the Board of Viewers appointed to assess the compensation to be paid Carmen D. Ambrosia and Rose M. Ambrosia for the condemnation of their property pursuant to the Eminent Domain Code.*fn1 On October 30, 1973, the viewers filed their report with the Prothonotary of the Court of Common Pleas of Lawrence County and awarded $30,000 to the Ambrosias as just compensation for the taking. On the same day, a copy of the report was sent to and received at the Engineering District Office of PennDOT in Franklin, Pennsylvania.

On January 4, 1974, PennDOT appealed the viewers' report to the Court of Common Pleas of Lawrence County. Because this was more than thirty days after the expiration of the thirty-day period during which such appeals are allowed under Section 515 of the Eminent Domain Code, 26 P.S. § 1-515, the Ambrosias petitioned the court to strike the appeal as untimely. PennDOT argued, however, that it had not been sufficiently served with notice of the filing of the viewers' report and that it should be

[ 24 Pa. Commw. Page 10]

    granted an extension of this filing time. The court below rejected the PennDOT argument and quashed its appeal. This appeal followed.

The PennDOT argument is that service of a viewers' report is not sufficiently perfected upon the Commonwealth unless it has been made in conformity with Pa. R.C.P. No. 2104(b)*fn2 and PennDOT regulations. The Ambrosias, on the other hand, argue that service in conformity with Section 513 of the Eminent Domain Code, 20 P.S. § 1-513,*fn3 determines its sufficiency.

Clearly the viewers' report was not filed in accordance with Pa. R.C.P. No. 2104(b) because service was not made at the office of the Attorney General. We do not believe, however, that the Pennsylvania Rules of Civil Procedure govern proceedings under the Eminent Domain Code. This legislation was enacted in 1964, and Section 525 of the Code, 26 P.S. § 1-525, clearly contemplated that

[ 24 Pa. Commw. Page 11]

    the Supreme Court would promulgate rules of civil procedure with respect to procedural matters set forth in the Code.*fn4 Unfortunately, however, no such rules have been added since the Code was enacted. And we believe that, until such time as the Supreme Court sees fit to do so, the Eminent Domain Code continues to provide the exclusive procedure by which eminent ...


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