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DONALD B. JANESKI v. BOROUGH SOUTH WILLIAMSPORT (05/13/81)

decided: May 13, 1981.

DONALD B. JANESKI, APPELLANT
v.
BOROUGH OF SOUTH WILLIAMSPORT, APPELLEE



Appeal from the Order of the Court of Common Pleas of Lycoming County in case of Donald B. Janeski v. Borough of South Williamsport, No. 77-1687.

COUNSEL

Norman M. Lubin, Casale & Bonner, for appellant.

Robert C. Wise, for appellee.

Judges Wilkinson, Jr., Mencer and MacPhail, sitting as a panel of three. President Judge Crumlish, and Judges Wilkinson, Mencer, Rogers, Blatt, Craig, MacPhail, Williams, Jr., and Palladino. Opinion by Judge MacPhail. Judge Mencer dissents. Judge Wilkinson, Jr. did not participate in the decision in this case.

Author: Macphail

[ 58 Pa. Commw. Page 370]

Donald B. Janeski (Appellant) appeals to this Court from a decision of the Court of Common Pleas of Lycoming County sustaining the preliminary objection of the Borough of South Williamsport (Borough) to Appellant's petition for appointment of a board of view filed pursuant to Section 502(e) of the

[ 58 Pa. Commw. Page 371]

Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-502(e), and dismissing Appellant's petition.

An opinion was written in this case and was filed on May 6, 1980. Janeski v. Borough of South Williamsport, 58 Pa. Commonwealth Ct. 366, 414 A.2d 403 (1980). Appellant filed an application for reargument, which was granted, and reargument was held before this Court sitting en banc. We now vacate our previous opinion and reach this matter on the merits.

Appellant filed a petition for appointment of a board of view on April 27, 1977. The petition alleged that Appellant's property had been damaged as a result of the resurfacing of the street and the installation of curbing in front of Appellant's property. The lower court appointed a Board of View on May 3, 1977. The Borough received proper notice of the appointment on May 10, 1977. On July 19, 1977, one day before the view was to have been held, the Borough filed a preliminary objection to the petition for appointment of viewers raising the question of whether a de facto taking had occurred. Appellant filed a motion to strike the preliminary objection as untimely filed; the trial court denied this motion on October 7, 1977 and directed depositions and briefs to resolve the issue of whether a de facto taking had occurred. The trial court held that Appellant failed to meet his burden to show any interference with his use of his property. The preliminary objection was sustained and Appellant's petition for the appointment of viewers was dismissed.

Two issues are presented for our review: whether the preliminary objection should have been stricken as untimely filed and, if not, whether the petition for appointment of viewers should have been granted.

[ 58 Pa. Commw. Page 372]

Sections 406 and 504 of the Code, 26 P.S. § 1-406 and § 1-504, provide for preliminary objections. Section 406 preliminary objections facially relate to situations where a formal declaration of taking has been filed, but this Court has also found them applicable to a de facto taking. Jacobs v. Nether Providence Township, 6 Pa. Commonwealth Ct. 594, 297 A.2d 550 (1972). Section 504 preliminary objections, which were added to the Code by Section 1 of the Act of December 5, 1969, P.L. 316, facially apply to the situation where a petition for the appointment of viewers has been filed, which, of course, is the fact in the case now before us. Section 406 provides that preliminary objections filed pursuant to that Section may be filed within thirty days after notice of condemnation is received. Section 504 provides that preliminary objections filed pursuant to that Section may be filed ...


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