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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA (03/04/80)

COMMONWEALTH COURT OF PENNSYLVANIA


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 deposit the funds with the court, leave for which was granted.

As has been stated, the premises were viewed on May 22, 1968. A viewer's hearing was fixed for October 8, 1969. Notice of that hearing was sent by ordinary mail to the Appellant because notices sent to the Appellant on other matters in the proceedings, which we have detailed above, were returned marked "refused." Notices sent by ordinary mail were acknowledged by Appellant. At Appellant's request, a postponement of that hearing was granted and a new date

[ 49 Pa. Commw. Page 588]

    fixed. In response to notice of the new date, Appellant demanded a $10,000 "fee" to cover expenses for himself and his witnesses to attend the hearing. This was necessary, he stated, because he resides in Florida and had traveled to Pittsburgh on or about May 22, 1968 for the first Board hearing, which had been continued. He stated that he did not intend to leave Florida for another hearing unless he received reimbursement for expenses. Again the hearing was postponed and a communication was sent by the Board to Appellant giving him a choice of dates for a hearing. Appellant responded by saying that none of the dates were satisfactory and renewed his demand for a fee to attend the hearing.

Finally, the Board scheduled a hearing for January 25, 1971, notice of which was given to Appellant by ordinary mail because Appellant refused all mail sent to him in any other fashion. The Board held that hearing as scheduled. The Appellant did not attend nor was he represented by counsel. Following the hearing, the Board made its award, notice of which was sent by certified mail to Appellant on February 17, 1971. That notice was returned as "refused." On March 8, 1971, the Commonwealth informed the Appellant via regular mail that no appeal from the Board's award would be filed by the Commonwealth.

On October 9, 1975, Appellant petitioned the trial court to set aside the award made by the Board on the basis that he had not received "due and proper" notice of the January 25, 1971 hearing. It is from a denial of that petition that this appeal has been taken.

Appellant argues before this Court that (1) the trial court erred in holding that the notice requirement of Section 505 of the Code is directory rather than mandatory and (2) the trial court erred in entertaining the Commonwealth defenses of laches and estoppel.

[ 49 Pa. Commw. Page 589]

The trial court found that Appellant had actual notice of the January 25, 1971 hearing. However, it is admitted that notice of the hearing was not served personally upon the Appellant nor was it served by certified or registered mail, nor by advertising as required by Section 505. Appellant's carefully phrased petition does not contend that he received no notice, only that he did not receive "due and proper" notice. Thus, the issue now before us is whether the provisions of Section 505 are mandatory or, in circumstances where the condemnee has actual notice of the hearing, will render strict compliance with Section 505 unnecessary. The trial court held that Section 505 was directory and, as we have noted, found that the condemnee had actual notice of the hearing and held that was all that the law required.

Appellant relies upon our opinion in Kinstler v. Redevelopment Authority of Philadelphia, 13 Pa. Commonwealth Ct. 281, 320 A.2d 396 (1974), to sustain his position that the failure of the Commonwealth to comply with the provisions of Section 505 is fatal to the instant proceedings. In Kinstler, our Court held that where the record in an eminent domain proceedings involving a de facto taking failed to show that the condemnee had caused notice of his petition for the appointment of viewers to be served upon the condemnor as required by Section 502(f) of the Code, the condemnor could not be precluded from filing preliminary objections to the appointment of viewers beyond the time normally allowed for such objections. Our Court held that until the service of notice was established, the petition for the appointment of a Board of View and the order appointing the Board of View had no legal effect. But the late Judge Kramer also stated:

If we were to rule otherwise, then a condemnee such as Kinstler could move ahead in a condemnation

[ 49 Pa. Commw. Page 590]

    proceeding in an ex parte fashion without the condemnor ever having knowledge of the existence of the proceeding. (Emphasis added.)

13 Pa. Commonwealth Ct. at 287, 320 A.2d at 399.

The obvious purpose of any "notice" statute is to provide the party having the duty to defend with a fair opportunity to do so. The record in the instant case puts the parties in this posture: the Commonwealth did not comply with the provisions of Section 505 of the Code because experience had shown that registered or certified mail would not reach the Appellant simply because he would not accept it; yet the Appellant did receive actual notice of the hearing by ordinary mail, but refused to attend the hearing unless certain financial conditions were met, none of which he was entitled to demand. It is not clear in the Kinstler case that the condemnor had actual notice of the filing of the petition within the time normally allowed for the filing of objections. Therefore, we do not feel bound by its holding in the instant case.

In Avery v. Commonwealth of Pennsylvania, 2 Pa. Commonwealth Ct. 105, 109, 276 A.2d 843, 845 (1971), Judge Crumlish wrote:

We know of no constitutional or legal mandate which requires us to apply the standard of strict construction to non-prejudicial irregularities in the procedural aspects of condemnation. (Emphasis in the original.)

Inasmuch as Appellant here had notice of the hearing and of the results of that hearing and failed to take any action with respect thereto for more than four years thereafter, we hold that in the circumstances of this case, the failure of the Commonwealth to comply with the provisions of Section 505 of the Code is not fatal to the eminent domain proceedings.

Accordingly, we will affirm the order of the trial court.

[ 49 Pa. Commw. Page 591]

Order

And Now, this 4th day of March, 1980, the order of the Court of Common Pleas of Allegheny County, Civil Division, dated May 17, 1979, is affirmed.

President Judge Bowman did not participate in the decision in this case.

Judge DiSalle did not participate in the decision in this case.

Disposition

Affirmed.


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