Appeal from the Order of the Court of Common Pleas of Luzerne County in case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, of the Right-of-Way for Legislative Route 4, Section 30. Estate of Stanley Croop, deceased v. Commonwealth of Pennsylvania, Department of Transportation, No. 1480 May Term, 1968.
Roger T. Shoop, Assistant Attorney General, with him Edward D. Werblun, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellant.
Clifford Cappellini, with him Raymond J. Sobota, Arthur L. Piccone, and Cardoni, Coslett, Cappellini, Sobota & Piccone, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by President Judge Bowman. Judge Kramer did not participate in the decision in this case.
[ 25 Pa. Commw. Page 186]
In this eminent domain case, invocation by the parties of the Act of April 22, 1874, P.L. 109, as amended, 12 P.S. § 688 et seq., dispensing with trial by jury on appeal to the court below from an award of viewers has generated the issues raised in this appeal.
[ 25 Pa. Commw. Page 187]
The Pennsylvania Department of Transportation (PennDOT) by declaration of taking condemned for road improvement purposes 5.31 acres of an 885 acre tract of land owned by the estate of Stanley Croop (appellee) situate in Hunlock Township, Luzerne County. A board of viewers had awarded appellee $227,503.73 in damages, from which award both parties appealed. After a non-jury trial, the trial judge rendered a verdict of $464,569.00 in damages. Exceptions to the verdict were filed by PennDOT, but the majority of the court below refused to consider them on the merits, having concluded that the exceptions were not timely filed as prescribed by Section 2 of the Act of 1874, 12 P.S. § 689. The trial judge dissented, being of the opinion that the procedural provisions of the Act of 1874 were suspended by the Pennsylvania Rules of Civil Procedure. Specifically, he found that Pa. R.C.P. No. 1038 was applicable, thereby affording recognition to an agreement of counsel extending the time allotted to PennDOT to file exceptions which could be recognized because timeliness in filing exceptions would then not be a jurisdictional issue. The trial judge in his dissenting opinion considered PennDOT's exceptions on the merits, and would dismiss all of them except one asserting that the verdict he rendered was excessive.
Post-trial procedures and dates thereof are critical to the issues here involved, as are the applicable provisions of the Act of 1874.
[ 25 Pa. Commw. Page 188]
This section in pertinent part provides: "The decision of the court shall be in writing . . . and shall be filed in the office of the prothonotary . . . as early as practicable, not exceeding sixty days from the termination of the trial, and notice thereof shall be forthwith given by the prothonotary . . . to the parties or their attorneys, and if no exceptions thereto are filed in the proper office within thirty days after service Page 188} of such notice judgment shall be entered thereon by the prothonotary. . . ." (Emphasis added.)
The trial judge's verdict is dated February 23, 1973, and it is this date upon which the majority of the court below relies in concluding that PennDOT's exceptions were not timely taken as prescribed by Section 2 of the Act of 1874. However, the verdict was not filed in the prothonotary's office until February 28, 1973 -- a critical fact not noticed by the court below or the parties -- and, so far as disclosed by the record below, the prothonotary has yet to give the parties notice of the filing and record this event upon his docket. PennDOT's exceptions were filed on March 29, 1973, which date is within thirty days of the filing of verdict in the prothonotary's office, and without regard to the implications arising out of the failure of the prothonotary to give the required notice on an issue of timeliness. Nixon v. Nixon, 329 Pa. 256, 198 A. 154 (1938); see Iannotta v. Philadelphia Transportation Company, 11 Pa. Commonwealth Ct. 156, 312 A.2d 475 (1973). Those who live by the sword of procedural niceties can fall prey to the same sword. Such is the case here.
We reverse the court below as the record clearly discloses that PennDOT's exceptions were filed within thirty days of the filing of the verdict in the office of the prothonotary, and this is with the gratuitous assumption that the prothonotary gave notice ...