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VIVIAN O. FARRINGTON v. COMMONWEALTH PENNSYLVANIA (05/19/78)

decided: May 19, 1978.

VIVIAN O. FARRINGTON, RONALD J. FARRINGTON AND BRUCE J. FARRINGTON, APPELLANTS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Vivian O. Farrington, Ronald J. Farrington and Bruce J. Farrington v. Commonwealth of Pennsylvania, Department of Transportation, No. 71-5683.

COUNSEL

Gregory J. Dean, for appellants.

Martin Burman, Special Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General -- Chief Counsel, and Robert P. Kane, Attorney General, for appellee.

Judges Wilkinson, Jr., Blatt and DiSalle, sitting as a panel of three. Opinion by Judge DiSalle.

Author: Disalle

[ 35 Pa. Commw. Page 374]

This is an appeal by Vivian O. Farrington, Bruce J. Farrington, and Ronald J. Farrington (Condemnees), from an order of the Court of Common Pleas of Montgomery County granting the petition of the Commonwealth of Pennsylvania, Department of Transportation (Condemnor) to strike the Condemnees' praecipe to withdraw their appeal from the award of the Board of View.

On May 12, 1971, a declaration of taking was filed by Condemnor condemning 2.79 acres of land owned by Condemnees. A view and hearing was held before a Board of View on February 14, 1974, at which Condemnees produced evidence of damages of $29,000 and Condemnor damages of $11,600. On March 5, 1974, the Board of View entered an award of $23,250, and, on March 6, 1974, Condemnees filed an appeal to the Court of Common Pleas. Condemnor did not appeal the award. On May 25, 1976, after obtaining new counsel who advised them to accept the Viewer's award, Condemnees filed a praecipe to withdraw their appeal. This was countered by Condemnor's petition to strike the withdrawal, which was subsequently granted by the lower court.

[ 35 Pa. Commw. Page 375]

We are faced with the narrow question of whether a party who has appealed from an award of a Board of View may, under the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. 1-101 et seq., withdraw the appeal ex parte.

A vintage line of cases, decided by our Supreme Court and relied on by Condemnor, indicate that an appeal may not be withdrawn unilaterally. The first reference to this general question is found as dicta in Monongahela Navigation Co. v. Blair, 20 Pa. 71, 79 (1852), wherein it was stated, "[W]e are of opinion that the appeal cannot be withdrawn, except by consent." Facing the question squarely in Brown v. Corey & Peterson, 43 Pa. 495 (1863), an appeal by condemnee from an award by viewers appointed under the Lateral Railroad Law,*fn1 the Supreme Court held the refusal of the court below to allow the appeal to be withdrawn was not error. The Court opined:

[I]f one party appeals the other need not. The cause is tried de novo on the appeal, . . . If the successful party may appeal, and, after the twenty days have elapsed, discontinue his appeal, he may thereby deprive his adversary of the retrial to which he is entitled. If such a practice were tolerated it would lead to oppression and fraud.

43 Pa. at 503.

Thereafter, the Court, in Schuylkill Etc. Railroad Co. v. Harris, 124 Pa. 215, 16 A. 838 (1889), relying on Brown v. Corey & Peterson, supra, as being decisive of the question before it -- whether under the general railroad law a party who appeals from an assessment of damages by viewers may ...


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