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SARAH UNGER v. HAMPTON TOWNSHIP SANITARY AUTHORITY (06/21/76)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 21, 1976.

SARAH UNGER, APPELLANT
v.
HAMPTON TOWNSHIP SANITARY AUTHORITY, APPELLEE

Appeals from the Order of the Court of Common Pleas of Allegheny County in case of In the Matter of Condemnation of Certain Parcels of Land Situate in the Township of Hampton, Allegheny County, Pennsylvania, by the Hampton Township Sanitary Authority, Allegheny County, Pennsylvania, for Public Sewer Purposes Now or Formerly of: Frederick Flagge, J. Brad Magill and Irene Magill, his wife (two Parcels), David F. Pettibon and Eva M. Pettibon, his wife, Julius Eisenberg, Richard A. Crowe and Joan M. Crowe, his wife, Joseph Reichmayr and Maria Reichmayr, and Sarah Unger, No. 513 January Term, 1971; and In Re: Petition of the Hampton Township Sanitary Authority, Allegheny County, Pennsylvania, for the Appointment of Viewers to Ascertain the Costs, Damages and Expenses, and Assess the Benefits for and out of the Construction of Certain Sanitary Sewers, Manholes and Appurtenances in the Sewer District of Hampton Township Known as Phase I, Contract III, as Designated on Plans Prepared by Duncan, Lagnese & Associates, Inc., and as Approved by the Board of Supervisors of Hampton Township, No. 2010 July Term, 1973.

COUNSEL

Richard K. Brandt, with him Edward F. Urbanik and Robb, Leonard & Edgecombe, for appellant.

Alvin E. Dillman, Jr., with him Dillman, Sheerer & Schuchert, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by Judge Mencer.

Author: Mencer

[ 25 Pa. Commw. Page 246]

On October 19, 1970, the Hampton Township Sanitary Authority (Authority) filed in the Court of Common Pleas of Allegheny County a declaration of taking for the purpose of acquiring land needed to construct a public sewer, pursuant to the Municipality Authorities Act of 1945.*fn1 Among the lands condemned

[ 25 Pa. Commw. Page 247]

    by the Authority was a large tract owned by Sarah Unger, the appellant here. The condemnation proceedings and resulting litigation extended over a period of five years and culminated in an order of the court below granting the Authority's motion to quash, as untimely, what Unger has characterized as her appeal from the viewer's report.

After carefully considering the record and the arguments of counsel, we are convinced that there would be no useful purpose served in our discussing at any length the ramifications of the procedures employed in this case by the viewers and Unger's response to those procedures,*fn2 for it is clear to us that Unger has been denied her notice rights under the Eminent Domain Code.*fn3

On September 26, 1974, Unger received from the chief clerk of the board of viewers a letter notifying her of the intended filing of the viewers' report. The report was filed on October 15, 1974. However, at no time either ten days prior to the filing of that report or subsequent thereto did the viewers ever furnish Unger with a copy. Section 513 of the Code, 26 P.S. ยง 1-513, requires that " [t]en days before the filing of their report, the viewers shall mail a copy thereof to all parties or their attorneys of record, with notice of the date of the intended filing and that the report shall become final unless an appeal therefrom is filed within thirty days from the date the report is filed." (Emphasis added.) Previously, we have concluded that, pursuant to the Code, a viewers' report must first be properly filed, which proper filing includes the mailing

[ 25 Pa. Commw. Page 248]

    of a copy of that report to all parties appearing before the viewers, in order to initiate the running of the thirty-day period allowed for filing of appeals from that report. See Commonwealth v. Ambrosia, 24 Pa. Commonwealth Ct. 8, 354 A.2d 257 (1976). Considering the direct statutory authority for that conclusion, we see no reason to depart from it now.

Order reversed and case remanded to enable the Hampton Township Sanitary Authority to mail a copy of its report filed on October 15, 1974 to Sarah Unger and to afford Sarah Unger a period of thirty days from receipt of a copy of the report to file, if she desires, an appeal therefrom.

Disposition

Reversed and remanded.


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