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ALBERT J. BERNOTAS AND GENEVIEVE M. BERNOTAS v. CHESTER COUNTY WATER RESOURCES AUTHORITY (04/14/78)

decided: April 14, 1978.

ALBERT J. BERNOTAS AND GENEVIEVE M. BERNOTAS, APPELLANTS
v.
CHESTER COUNTY WATER RESOURCES AUTHORITY, APPELLEE. CONDEMNATION OF 53.8 ACRES MORE OR LESS, SITUATE IN UPPER UWCHLAN TOWNSHIP, CHESTER COUNTY, PENNSYLVANIA BEING PROPERTY OF ALBERT J. BERNOTAS AND GENEVIEVE M. BERNOTAS, HIS WIFE, BY THE CHESTER COUNTY WATER RESOURCES AUTHORITY FOR RESERVOIR PURPOSES. ALBERT J. BERNOTAS AND GENEVIEVE M. BERNOTAS, APPELLANTS



Appeals from the Orders of the Court of Common Pleas of Chester County in case of Chester County Water Resources Authority v. Albert J. Bernotas and Genevieve M. Bernotas, Nos. 216 of 1967, 174 March Term, 1970 and 22 October Term, 1971.

COUNSEL

Albert J. Bernotas and Genevieve M. Bernotas, appellants, for themselves.

John E. Good and Patrick C. O'Donnell, for appellee.

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

Author: Crumlish

[ 35 Pa. Commw. Page 2]

The Court of Common Pleas of Chester County decided two separate actions commenced by Albert J.

[ 35 Pa. Commw. Page 3]

Bernotas and Genevieve Bernotas (Appellants). Those docketed at Nos. 1325 and 1398 C.D. 1973*fn1 involved denial of Appellants' petition to strike notice of taking or file preliminary objections in a condemnation proceeding. The appeal at No. 824 C.D. 1974 is from the decision denying Appellants' petition to set aside a writ of possession granted to the Chester County Water Resources Authority (Appellee) flowing from the same condemnation. Both actions were consolidated for our resolution.

It serves no purpose to detail the tortured and lengthy prior proceeding and so we will recount only those facts which we consider necessary for the reader to understand the nature of this appeal and the basis for our decision.

In 1967 a declaration of taking was filed in the Court of Common Pleas condemning certain property titled to Appellants. Four and one-half years later, in March of 1972, following damage reports filed by two boards of view, Appellants' subsequent petition for leave to file preliminary objections to the declaration of taking was denied in November of 1972. This order was never appealed. The following year Appellants filed another petition to strike notice of taking or file preliminary objections. This was substantively the same petition that had been denied in 1972. The court below denied this petition on the authority of the 1972 decision. This 1973 order was appealed to us and docketed at Nos. 1325 and 1398 C.D. 1973.

We affirm the court below as to these appeals. The 1972 order, denying Appellants' petition for leave to file preliminary objections, was never appealed and accordingly, is final. Any subsequent attempt to challenge the validity of the taking by preliminary objection*fn2

[ 35 Pa. Commw. Page 4]

    is barred by the doctrine of res judicata. See Game Commission v. Hilliard, 3 Pa. Commonwealth Ct. 560, ...


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