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LENA FINEBERG ET AL. v. URBAN REDEVELOPMENT AUTHORITY PITTSBURGH (08/08/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 8, 1979.

LENA FINEBERG ET AL., APPELLANTS
v.
URBAN REDEVELOPMENT AUTHORITY OF PITTSBURGH, APPELLEE

Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Lena Fineberg, Arnold Fineberg, Ethel Insler, Ralph Fineberg, Rosie Malhmood, a/k/a Rosie Malamud, Jeannette Berman (formerly Jeannette Fineberg) and Cecelia Sharp v. Urban Redevelopment Authority of Pittsburg, No. G.D. 76-9495 Sur. No. 1318 January Term, 1972.

COUNSEL

Thomas R. Solomich, with him Rothman, Gordon, Foreman and Groudine, P.A., for appellants.

Marion E. Popiel, for appellee.

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

Author: Mencer

[ 44 Pa. Commw. Page 630]

On November 3, 1971, the Urban Redevelopment Authority of Pittsburgh (Authority) filed a declaration of taking condemning certain real estate, described by metes and bounds, owned by Lena Fineberg, Arnold Fineberg, Ethel Insler, Ralph Fineberg,

[ 44 Pa. Commw. Page 631]

Rosie Malhmood, a/k/a Rosie Malamud, Jeannette Berman, and Cecelia Sharp (appellants) and located in the Third Ward of the City of Pittsburgh. On May 3, 1976, the Authority filed a petition for the appointment of viewers and attached thereto as exhibit A the metes-and-bounds description set forth in the declaration of taking.*fn1

[ 44 Pa. Commw. Page 632]

On November 16, 1977, the report of viewers was filed, and an award was made to the appellants in the amount of $11,900. The Authority was to be allowed a credit for the payment of $7,000 made to appellants on December 21, 1971, the date on which delay compensation would be calculated.

The Authority filed an appeal from the award of viewers, and the appellants filed a motion to quash the appeal. The motion to quash presented to the Court of Common Pleas of Allegheny County the contention that the Authority's appeal from the award of viewers failed to satisfy the requirement of Section 516(a)(2) of the Eminent Domain Code, Act of June 22, 1964, Spec. Sess., P.L. 84, as amended, 26 P.S. § 1-516(a)(2). The court below denied the appellants' motion to quash but granted the Authority 10 days to file a more detailed description and identification of the property than had been included in the appeal. This appeal followed.

Initially, we must determine whether the order appealed from here is interlocutory and, as such, not appealable. Although the order is interlocutory, it determined the jurisdiction question of whether the appeal by the Authority was properly taken from the viewers' award to the Court of Common Pleas. Exxon Corp. v. Department of Transportation, 10 Pa. Commonwealth Ct. 301, 312 A.2d 121 (1973). Section 1 of the Act of March 5, 1925, P.L. 23, as amended, formerly 12 P.S. § 672, repealed (effective June 27, 1980) by Section 2(a) [1069] of the Judiciary Repealer

[ 44 Pa. Commw. Page 633]

Act, Act of April 28, 1978, P.L. 202, provides that interlocutory orders involving jurisdictional questions are appealable. Miller Estate v. Department of Highways, 424 Pa. 477, 227 A.2d 679 (1967). The order of the court below under challenge here was appealable.

Accordingly, we now address the question of whether the Authority's appeal satisfied the requirement of Section 516(a)(2) of the Eminent Domain Code, which reads as follows:

(a) The appeal shall set forth:

(2) A brief description or identification of the property involved and the condemnee's interest therein.

The Authority's appeal, in pertinent part, stated that the Authority appealed "from the Viewers' Report in the above entitled case filed on November 16, 1977."*fn2 The appeal identified the property involved as being "located in the Third Ward of the City of Pittsburgh, County of Allegheny and Commonwealth of Pennsylvania." Further, the appeal set forth that "[t]he interest of the condemnees in the aforesaid property is ownership in fee simple."

Simply stated: Did appellants' identification of the property set forth in the appeal satisfy Section 516(a)(2)? We would first note that subsection (a)(2) is satisfied by either a description or identification. Here the Authority did not describe the property as it had previously done when filing its declaration of taking and petition for appointment of viewers. The Authority attempted to identify the property involved, and we conclude that it did so.

[ 44 Pa. Commw. Page 634]

Surely the appellants were not prejudiced or misled as to the property involved since reference was made to the "above entitled case" in which the property was described by metes and bounds in both the declaration of taking and the petition for appointment of viewers. In addition, the property was specified as being located in the Third Ward of the City of Pittsburgh.

We are of the view that the facts here fall within the ambit of our holding in Erb v. Department of Transportation, 11 Pa. Commonwealth Ct. 111, 312 A.2d 467 (1973), where we held that a misdescription of the docket numbers and the address of the condemned property was not fatal to a challenge when the proper deed book number and location at the proper street corner were described and the condemnee was not misled by reason of the information contained in the appeal papers.

Although the identification of the property involved as set forth in the appeal could well have been more detailed, we conclude that it contained sufficient information to allow appellants to determine that the property involved in the appeal was the same tract described in detail in the report of viewers.

Therefore, we will affirm the order of the court below in denying appellants' motion to quash the appeal to the Court of Common Pleas of Allegheny County.*fn3

Order affirmed.

[ 44 Pa. Commw. Page 635]

Order

And Now, this 8th day of August, 1979, the order of the Court of Common Pleas of Allegheny County, dated January 24, 1978, denying appellants' motion to quash the appeal filed by the Urban Redevelopment Authority of Pittsburgh, is hereby affirmed.

Disposition

Affirmed.


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