Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Robert N. Lando, Executor of the Estate of Gerald G. Balch, deceased v. Urban Redevelopment Authority of Pittsburgh, No. GD 79-1105.
William P. Bresnahan, with him Edward C. Milburn, of O'Donnell, Bresnahan, Caputo & Capristo, for appellant.
Marion E. Popiel, for appellant.
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.
[ 49 Pa. Commw. Page 567]
Robert N. Lando (Appellant), appeals to this Court from an order of the Court of Common Pleas of Allegheny County sustaining the preliminary objections of the Urban Redevelopment Authority of Pittsburgh (Authority) to Appellant's Petition for Appointment of Viewers. The only issue before us is whether the trial judge erred in ruling that the petition was untimely filed. We hold that he did not err and, accordingly, we affirm.
The facts of this case are not in dispute. On December 12, 1971, Gerald G. Balch was the owner in fee simple of the property known as 1301 Adams Street, Pittsburgh. Mr. Balch died on February 23, 1978 and Appellant was appointed executor of his estate. On January 15, 1979, Appellant filed a Petition for the Appointment of Viewers pursuant to Section 502(e) of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-502(e). In the petition, Appellant alleged that on December 12, 1971 the Authority, a governmental body clothed with the power of eminent domain, had substantially interfered with the beneficial use and enjoyment of the Adams Street property. He further asserted that this interference amounted to a de facto taking entitling him to the appointment of viewers to determine just compensation for the injury to the property. The Authority filed preliminary objections to the petition alleging, inter alia, that the petition was not filed within six years of the alleged de facto taking as is required by Section 524 of the Code, 26 P.S. § 1-524,*fn1 and, therefore, that it was barred by the statute
[ 49 Pa. Commw. Page 568]
of limitations. The trial judge sustained the Authority's objection on the basis of the statute of limitations and dismissed the petition without deciding the remaining preliminary objections. The case is now properly before us for disposition.
Section 524 of the Code, 26 P.S. § 1-524, provided that:
A petition for the appointment of viewers for the assessment of damages for a condemnation or compensable injury may not be filed after the expiration of six years from the date on which the condemnor made payment in accordance with section 407(a) or (b) of this act [the Code] where the property or any part thereof has been taken, or from the date of injury where the property has been injured but no part thereof has been taken.
Appellant would have us analyze Section 524 in three phases: (1) actual takings where the condemnor has made payment, (2) injuries without actual taking, both of which would be subject to a six year statute of limitations and (3) actual takings, separate from injuries, where the condemnor ...