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A CONDEMNATION PROCEEDING REM BY HATFIELD TOWNSHIP FOR PURPOSE ACQUIRING FEE SIMPLE TITLE TO PROPERTY SITUATED HATFIELD TOWNSHIP FOR PARK AND RECREATIONAL PURPOSES. EDGEWOOD BUILDING CO. (05/29/79)

decided: May 29, 1979.

A CONDEMNATION PROCEEDING IN REM BY HATFIELD TOWNSHIP FOR THE PURPOSE OF ACQUIRING FEE SIMPLE TITLE TO PROPERTY SITUATED IN HATFIELD TOWNSHIP FOR PARK AND RECREATIONAL PURPOSES. EDGEWOOD BUILDING CO., INC., APPELLANT


Appeal from the Order of the Court of Common Pleas of Montgomery County in case of A Condemnation Proceeding in Rem by Hatfield Township for the Purpose of Acquiring Fee Simple Title to Property Situate in Hatfield Township for Park and Recreational Purposes, No. 76-21111.

COUNSEL

Alfred O. Breinig, Jr., for appellant.

C. Stephens Vondercrone, Jr., with him Pearlstine, Salkin, Hardiman and Robinson, for appellee.

Judges Mencer, Rogers and Craig, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 43 Pa. Commw. Page 92]

Edgewood Building Co., Inc. (Edgewood), has appealed from an order of the Court of Common Pleas of Montgomery County granting Hatfield Township's motion to strike Edgewood's preliminary objections to a Declaration of Taking and denying the prayer of Edgewood's petition for leave to file its preliminary objections nunc pro tunc. The court struck Edgewood's preliminary objections because they were filed more than thirty days after service of the Notice of the filing of the Declaration and denied Edgewood's application to file preliminary objections nunc pro tunc for their failure to give sufficient reason why Edgewood should have that relief.

The subjects of the Township's Declaration of Taking were a number of small lots in an old land subdivision,

[ 43 Pa. Commw. Page 93]

    some owned by Grace Building Co., Inc., some owned by Curtis Building Co., Inc. and two owned by the appellant, Edgewood. Each of the owners was served with the Notice of the filing of the Declaration of Taking by certified mail sent January 10, 1977. Return receipts showed that the mailing to Edgewood was delivered on January 11, 1977 and that the mailing to Curtiss was delivered on January 13, 1977. For reason not necessary to explain, the Notice was not sent to Grace but it nevertheless filed timely Preliminary Objections. On February 14, 1977 an attorney representing all three condemnees filed one pleading setting out preliminary objections of each of the condemnees. The Township's motion to strike Edgewood's preliminary objections followed.

Edgewood says that the court below should not have struck its preliminary objections because the certified mail by which service of the Notice of condemnation was made was sent without restrictive notation, by which it seems to mean without requiring the postal authorities to deliver the item only to some individual Edgewood officer, agent or employee. Edgewood relies in this regard on Pa. R.C.P. No. 2180, providing that service on corporations and similar entities in actions covered by the Rules of Civil Procedure shall be made on officers, persons in charge of an office or persons authorized to accept service. The argument is wholly without merit. Section 405 of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, 26 P.S. ยง 1-405, provides:

(b) The notice shall be served within or without the Commonwealth by any competent adult, in the same manner as a complaint or writ of summons in assumpsit, or by certified or registered mail, to the last known address of the condemnee. . . . (Emphasis added.)

[ 43 Pa. Commw. Page 94]

The comment of the Joint State Government Commission 1964 Report states, "Where the notice is mailed, the condemnor has the option of using either certified or registered mail." The "or" emphasized in the above quoted language is meant to be disjunctive. Spector v. Vignola, 446 Pa. 1, 285 A.2d 869 (1971). Therefore, the Notice of filing of the Declaration of Taking was properly served by certified mail. Edgewood's reliance on Pa. R.C.P. No. 2180 is misplaced. The Eminent Domain Code provides the exclusive procedure for application in actions subject to the Code and the Rules of Civil Procedure have no application to such actions. Pennsylvania Department of Transportation v. Ambrosia, 24 Pa. Commonwealth Ct. 8, 354 A.2d 257 (1976). Furthermore, Edgewood does not explain how the Township ...


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