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

COMMONWEALTH COURT OF PENNSYLVANIA


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 domain matters are governed. See Miller v. Pennsylvania Department of Highways, 23 Bucks 297 (1973).

PennDOT also argues that if Section 513 of the Eminent Domain Code does apply, the service of the viewers' report upon the PennDOT District Office fails to satisfy the requirement of the section that service must be made upon the "parties" to the action. PennDOT asserts that under department regulations*fn5 the District Office is not a party but merely an agent of the process server possessing authority to transmit pleadings to PennDOT. It further cites Izzi v. Commonwealth, 11 Chester 280 (1963), wherein service upon a PennDOT maintenance office was held to be insufficient to perfect service upon PennDOT. In our view, however, neither the holding of Izzi, supra, nor the departmental regulations are applicable here.

[ 24 Pa. Commw. Page 12]

The court in Izzi considered the propriety of service under Pa. R.C.P. No. 2104(b) and held that the rule allowed for service only at "the office" of the defendant and that the only PennDOT office which meets that description is "the office" in Harrisburg. Departmental regulations designating the District Offices as agents of the process server, therefore, would merely clarify the manner in which pleadings should be served under rule 2104(b). As we have said, however, rule 2104(b) does not apply to eminent domain proceedings, and Section 513 of the Code which does apply merely compels service upon "the party," not upon "the office" of the party. The District Office, upon which the viewers' report was served in this case, was the PennDOT office which had been concerned with all of the proceedings in this eminent domain case. It was, therefore, the proper office at which to serve PennDOT with the findings and award of the viewers. And we believe, as did the court below, that such service met the requirements of Section 513 of the Eminent Domain Code. The late appeal by PennDOT from the viewers' report was, therefore, properly quashed by the court below. We affirm.

Disposition

Affirmed.


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