Appeal from the Order of the Court of Common Pleas of Westmoreland County in case of In the Matter of: Condemnation of rights of way and easements situate in the Township of North Huntingdon and the Township of Hempfield, County of Westmoreland, Commonwealth of Pennsylvania, by the North Huntingdon Township Municipal Authority for Sewerage Purposes, No. 2104 of 1976.
David M. Priselac, for appellants.
Donald J. Snyder, Jr., with him Costello & Berk, for appellee.
Judges Kramer, Mencer and Rogers, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt and DiSalle. Opinion by Judge Rogers. Concurring and Dissenting Opinion by Judge Mencer.
John and Veronica Milas (condemnees) have appealed from an order of the Westmoreland County Court of Common Pleas dismissing their preliminary objections to a declaration of taking filed by the North Huntingdon Township Municipal Authority (Authority). The condemnees argue that the court below erred in dismissing their preliminary objections without first having conducted an evidentiary hearing.
The Authority filed a declaration of taking pursuant to Section 402 of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-402, for a right-of-way or easement 30 feet in width during construction and 20 feet in width thereafter to lay, maintain, operate and remove a single line of sewer pipe across the condemnees' property. Pursuant to Section 403(a) of the Eminent Domain Code, 26 P.S. § 1-403(a), the Authority filed an open-end bond with its declaration of taking. The condemnees filed preliminary objections to the declaration of taking pursuant to Section 406 of the Emient Domain Code, 26 P.S. § 1-406, as follows:
1. Condemnees object to the sufficiency of the security as the same is inadequate, insufficient and valueless.
2. Condemnees object to the declaration of taking as to the nature of the title acquired and the description of the property condemned as the same is not that averred but in fact is the entire interest of the condemnees.
The court below, sitting en banc, dismissed the preliminary objections without a hearing.
Sections 403(c) and 406(a)(2) of the Eminent Domain Code, 26 P.S. §§ 1-403(c), 1-406(a)(2), provide that a challenge to the sufficiency of the security is properly made by filing preliminary objections to the declaration of taking. Section 406(e) of the Eminent Domain Code, 26 P.S. § 1-406(e) states that when an issue of fact is raised in the preliminary objections, the court shall take evidence by depositions or otherwise. In Golden Dawn Shops, Inc. v. Philadelphia Redevelopment Authority, 3 Pa. Commonwealth Ct. 314, 282 A.2d 395 (1971), ...