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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA (03/04/80)

decided: March 4, 1980.

IN RE: CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF HIGHWAYS, OF RIGHT OF WAY FOR LEGISLATIVE ROUTE 1016, SECTION 13. RAYMOND E. BUERKLE, APPELLANT


Appeal from the Order of the Court of Common Pleas of Allegheny County in case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Highways of Right of Way for Legislative Route 1016, Section 13, No. 1870 January Term, 1967.

COUNSEL

John B. Nicklas, of McCrady, Nicklas & McCrady, for appellant.

David Ward Murphy, Special Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General and Edward G. Biester, Jr., Attorney General, for appellee.

Judges Crumlish, Jr., Mencer and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. President Judge Bowman did not participate in the decision in this case. Judge DiSalle did not participate in the decision in this case.

Author: Macphail

[ 49 Pa. Commw. Page 586]

Raymond E. Buerkle (Appellant) has filed this appeal from an order of the Court of Common Pleas of Allegheny County that denied Appellant's petition to strike the awards of viewers in a condemnation proceeding by the Department of Highways (Commonwealth) of a right of way for Legislative Route 1016. We affirm.

The procedural history of this case is tortuous, but essential to a clear understanding of our holding. Therefore, it will be given in some detail.

The Commonwealth filed a Certificate of Taking on November 17, 1966. On January 23, 1968, Appellant filed a petition for the appointment of viewers, which was granted. Appellant was represented by counsel at that time.

It is significant to note that on April 22, 1968 the Board of View (Board) gave notice as required by Section 505 of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. ยง 1-505,*fn1 by certified mail to Appellant's counsel

[ 49 Pa. Commw. Page 587]

    that the premises would be viewed on May 22, 1968. On May 2, 1968, Appellant filed a petition to withdraw the funds that had been deposited with the court as estimated just compensation. The court ordered a hearing on that petition for May 24, 1968; that hearing was continued at the request of Appellant's counsel.

On May 22, the view of the premises was conducted and on May 28, 1968, the Commonwealth filed a petition to amend its declaration of taking which petition was granted. On May 31, 1968, the court ordered the Commonwealth to make payment to the Appellant of the amount it had estimated for just compensation.

On February 17, 1969, leave to withdraw was granted to Appellant's original counsel. Appellant refused to accept the check issued to him as a result of the court's order of May 31, 1968 and his new counsel, therefore, sought to ...


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