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HENRY L. WILSON AND GERALDINE L. WILSON v. WESTERN PENNSYLVANIA WATER COMPANY (07/02/81)

decided: July 2, 1981.

HENRY L. WILSON AND GERALDINE L. WILSON, HIS WIFE; AND JAMES A. PODOBNIK AND KATHLEEN B. PODOBNIK, HIS WIFE, APPELLANTS
v.
WESTERN PENNSYLVANIA WATER COMPANY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Washington County in the case of Henry L. Wilson and Geraldine L. Wilson, his wife; and James A. Podobnik and Kathleen B. Podobnik, his wife v. Western Pennsylvania Water Company, No. 7611, in Equity.

COUNSEL

Charles E. Boyle, with him William R. Bishop, Jr., Bishop & Boyle, P.C., for appellants.

Frank C. Carroll, P.C., for appellee.

Judges Blatt, Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 60 Pa. Commw. Page 313]

Henry and Geraldine Wilson and James and Kathleen Podobnik (Appellants) appeal from an order of the Court of Common Pleas of Washington County which dismissed Appellants' complaint in equity. The equity action had challenged the legality of and sought an injunction relative to the condemnation of easements by the Western Pennsylvania Water Company (Appellee) for the installation of a water line across Appellants' properties.

The procedural history of this case is complex. On November 8, 1979 Appellants filed a complaint in equity with the court of common pleas challenging the exercise of the power of condemnation by Appellee and requesting that the court enjoin Appellee from carrying out its condemnation resolution. The court had approved the filing of surety bonds by the Appellee, apparently over Appellants' objection, on November 5, 1979. On January 31, 1980, due to Appellants' belief that construction was imminent, Appellants filed a petition for a rule to show cause why a preliminary injunction should not be issued enjoining construction. The court, per President Judge Sweet, after a conference in chambers ordered a hearing on the rule to show cause, stating therein that "[t]he real question which should be answered prior to the Condemnor actually entering upon the real estate of the Condemnee is whether there is any damage to the Condemnee which cannot be compensated for in money as provided by the Bonds of Surety approved by Judge Gladden and the undersigned." After hearing oral argument, the court, in an undated

[ 60 Pa. Commw. Page 314]

    order filed on March 7, 1980, ruled that the petition for a rule to show cause be dismissed. In addition, the court ordered that Appellants be "remitted to the normal procedure for the ascertainment of damages and compensation of these from the bond heretofore directed."

Discovery proceedings continued thereafter relative to the complaint in equity and on May 1, 1980 trial on the complaint was set for July 24, 1980 before Judge Terputac. On May 16, 1980, however, a rule was issued, upon petition of Appellee, for Appellants to show cause why their complaint should not be dismissed.*fn1 In essence, Appellee requested that the court clarify that its March 7 order had also dismissed the equity complaint insofar as Appellants were "remitted to the normal procedure for the ascertainment of damages." Argument on the rule was heard by Judge Terputac on May 27, 1980. Although not included in the record, Appellee subsequently filed a motion requesting that Judge Terputac assign the petition for dismissal to President Judge Sweet and/or Judge Gladden, both of whom had as a two-judge court issued the March 7 order. Appellants apparently received no notice of the motion to transfer decision on the rule. On June 17, 1980 President Judge Sweet and Judge Gladden issued an order "affirming" their order of March 7. They interpreted the March 7 order as having dismissed the Appellants' equity complaint. The order of June 17 further directed that Appellants collect damages by way of the previously approved bonds. No opinion in support of this order was filed. The instant appeal followed.

[ 60 Pa. Commw. Page 315]

Upon their appeal to this Court, Appellants petitioned for temporary injunctive relief to prevent installation of the water line pending appeal and Appellee moved to dismiss the appeal as untimely. Both requests were denied by this opinion writer by order entered September 4, 1980.*fn2 Finally, on November 10, 1980 Appellee filed another motion to dismiss the appeal, this time for mootness due to the development that the contested water line had been installed on Appellants' properties during the week of October 6, 1980. By order dated December 2, 1980 this Court, per Judge Palladino, denied the motion.

The issue presented by Appellants in this appeal is whether or not the court below properly ...


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