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MILFORD-TRUMBAUERSVILLE AREA SEWER AUTHORITY v. APPROXIMATELY 0.753 ACRES LAND KNOWN TO BE PROPERTY JOHN A. M. MCCARTHY (06/01/76)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 1, 1976.

MILFORD-TRUMBAUERSVILLE AREA SEWER AUTHORITY
v.
APPROXIMATELY 0.753 ACRES OF LAND KNOWN TO BE THE PROPERTY OF JOHN A. M. MCCARTHY, APPELLANT

Appeal from the Order of the Court of Common Pleas of Bucks County in case of Milford-Trumbauersville Area Sewer Authority v. Approximately 0.753 Acres of Land Known to be Property of John A. M. McCarthy, No. 75-3526-08-4.

COUNSEL

John A. M. McCarthy, appellant, for himself.

Victor S. Jaczun, with him Jaczun & Grabowski, for appellee.

Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Crumlish, Jr. Judge Kramer did not participate in the decision in this case.

Author: Crumlish

[ 25 Pa. Commw. Page 14]

Presently before us is the appeal of John A. M. McCarthy (Condemnee). Condemnee asks us to reverse an order of the Court of Common Pleas of Bucks County which dismissed his preliminary objections to a declaration of taking filed by the Milford Trumbauersville Area Sewer Authority (Condemnor). For the reasons hereinafter stated, we affirm.

Condemnee frames four issues for our resolution:

1. Can a court of common pleas overrule preliminary objections challenging adequacy and sufficiency of the bond of a condemnor without taking testimony?

2. Should a declaration of taking comply with the Pennsylvania Rules of Civil Procedure?

3. Must a sewer authority's declaration of taking reveal how it came into existence, the date and source of its charter and where it is recorded?

4. Should a drawing of a proposed sewer line show a view of its elevation as well as a flat plan?

[ 25 Pa. Commw. Page 15]

Condemnee's initial argument is that the court below improperly dismissed his objection to the sufficiency of bond without allowing Condemnee to offer testimony. We have carefully examined the record and conclude that the opinion of the court below cogently disposed of this contention.

It is well settled that in cases in which the sufficiency of the security is challenged by preliminary objection, the condemnee is entitled to a hearing and an opportunity to present evidence. Faris Appeal, 435 Pa. 55, 254 A.2d 653 (1969). The record tells us that after Condemnee filed his preliminary objections he made no request to continue the date of argument. Indeed in a letter to the court below covering his brief in support of preliminary objections, Condemnee indicated his intention to rely solely on his brief.*fn1 This being so, Condemnee was in no way deprived of his right to present testimony.

[ 25 Pa. Commw. Page 16]

Second, Condemnee asserts that the declaratio of taking filed by Condemnor is not executed and verified as mandated by Section 402(b) of the Eminent Domain Code*fn2 and Pa. R.C.P. No. 1024. Section 402(b) provides:

"The declaration of taking shall be in writing and executed by the condemnor . . . ."

Condemnee argues that the phrase, executed by the condemnor, in Section 402(b), should be read to mean officer, manager, superintendent, member or similar person of the condemning authority, and that the phrase is in no way broad enough to include the solicitor of the authority. Condemnor counters by arguing that it specifically provided in its condemnation resolution that its solicitor was empowered to file the declaration of taking.*fn3 A review of the Eminent Domain Code, and its attendant case law, satisfied us that Condemnor is not restricted from authorizing its solicitor to act on its behalf in the execution of a declaration.

[ 25 Pa. Commw. Page 17]

Moreover, Condemnee does not assert, and we are unable to find, prejudice in the alleged inadequacy.

A more persuasive argument presented by Condemnee is that the declaration of taking is defective because Condemnor's solicitor verified the declaration. Pa. R.C.P. No. 1024 states in relevant part:

"(a) Every pleading containing averments of fact not appearing of record in the action or containing denials shall be verified on oath or affirmation that the averments or denials are true upon the affiant's personal knowledge or information and belief. The affiant need not aver the source of his information or expectation of ability to prove the averments or denials at the trial. A pleading may be verified upon personal knowledge as to a part and upon information and belief as to the remainder."

Further, Pa. R.C.P. No. 1002 states:

"Any act other than verification required or authorized by this chapter to be done by a party may be done by his attorney."

In reconciling this argument the court below relied upon Pa. R.C.P. No. 126, its rationale being that if an error existed with regard to the verification, it was at best a technical error and harmless. We agree with that rationale*fn4 where it stated:

"The rules of civil procedure are not to be lightly regarded by either the bar or the courts. They must be observed in the interest of order and regularity in the progress of litigation. This requirement is tempered by rule 126 which provides:

[ 25 Pa. Commw. Page 18]

'The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.'

"Pleadings which rule 1024 requires to be verified are limited to those 'containing averments of facts not appearing of record in the action.' The only fact averred in this declaration of taking which can be construed to fall within the rule are records of a public body which are open to inspection. While it is true, as condemnee said in his brief that he is not required to 'run around to all obscure places,' the record before us contains a certified copy of the Authority's resolution to make the condemnation -- which is the principal averment of fact in the declaration of taking. The authenticity of the copy does not appear to be questioned. It may also be stated that it is doubtful whether the condemnor was required to attach a copy of the resolution. The statute merely directs that a specific reference to it be pleaded, together with the name of the place where the record may be examined. (Sect. 402(3)). While it would have been better practice to have had the declaration of taking verified by someone other than the Authority's solicitor, this defect does not affect the substantial rights of the condemnee. There is no constitutional or legal mandate which required the court to apply the standard of strict construction to non-prejudicial irregularities in the procedural aspects of condemnation. Peter v. Dept. of Forests and Waters, 12 Commonwealth Ct. 330, 334 (1974)."

Third, Condemnee contends that the court below improvidently dismissed its objection which was based on the failure of the declaration of taking to state the

[ 25 Pa. Commw. Page 19]

    date the authority came into existence, the source of its charter or the location of the recorded charter.

Section 402 of the Code, 26 P.S. ยง 1-402, enumerated the averments necessary to constitute a valid declaration of taking. That section in no way mandates that a condemnor plead the facts sought by Condemnee in this third objection. Condemnor need only plead its name and address;*fn5 a specific reference to the statute, article and section thereof under which the condemnation is authorized;*fn6 a specific reference to the action whether by ordinance, resolution or otherwise, by which the declaration of taking was authorized, including the date when such action was taken, and the place where the record thereof may be examined.*fn7

Other requirements enumerated in Section 402 do not relate to the facts sought by Condemnee in the instant objection, but it is clear that Condemnor's declaration of taking meets the enumerated requirements above mentioned.*fn8

[ 25 Pa. Commw. Page 20]

Finally, Condemnee argues that the drawing of the proposed sewer line appended to the declaration of taking is inadequate in that it fails to set forth elevations of the proposed line. Our review of the relevant Code section fails to disclose a requirement that a condemnor set forth elevations of the proposed line.

Section 402(5), in describing the requirements necessary for inclusion in the declaration of taking requires only a description of the property condemned sufficient for identification thereof.*fn9 This description

[ 25 Pa. Commw. Page 21]

    may be a word description or in plan form. See Section 402(b)(5) of Snitzer, Pennsylvania Eminent Domain (1965). Condemnor has chosen to incorporate the appended plan as its description in this partial taking.

We agree with the court below that the plan prepared by a consulting engineer taken from both deed book and tax parcel recordings is sufficient to give Condemnee the requisite notice of that portion of his tract to be taken.

In light of the foregoing, the order of the court below dismissing the preliminary objections of Condemnee is hereby affirmed.

Judge Kramer did not participate in the decision in this case.

Disposition

Affirmed.


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