Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Emil Kraiser, Jr. v. Horsham Township, No. 80-13671.
David P. Grau, Semisch & Grau, for appellant.
Marc D. Jonas, Hamburg, Rubin, Mullin & Maxwell, for appellee.
Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Williams, Jr.
Emil Kraiser, Jr., has appealed from an order of the Court of Common Pleas of Montgomery County dismissing his petition for the appointment of viewers under Section 502(e) of the Eminent Domain Code.*fn1
In September of 1971, appellant Kraiser purchased an unimproved parcel of land located along Olive Avenue in Horsham Township, Montgomery County.
At the time of Kraiser's purchase, the district in which his parcel is located was zoned "R-5," a classification that permitted residential structures, including duplexes. On May 7, 1974, Horsham Township (Township) enacted an ordinance that established a Flood Plain Conservation District (Flood Plain District). The 1974 enactment, which amended the Township's existing zoning ordinance, prohibited structures and buildings in the Flood Plain District; although, certain agrarian uses were permitted. By force of the 1974 enactment, Kraiser's property was included in the Flood Plain District.
In June 1976, Kraiser applied to the Zoning Hearing Board of Horsham Township for a variance, to permit the erection of a duplex on his property. That application was denied, and we affirmed the decision. Kraiser v. Zoning Hearing Board of Horsham Township, 45 Pa. Commonwealth Ct. 277, 406 A.2d 577 (1979).
On August 6, 1980, Mr. Kraiser filed, in the Court of Common Pleas of Montgomery County, a petition for the appointment of viewers under Section 502(e) of the Eminent Domain Code (Code). In that petition, Kraiser asserted that the Township's flood plain ordinance, by prohibiting the use of his land for residential construction, worked a de facto taking of the property. He claimed $72,000 as the amount of just compensation. On August 7, 1980, the Court of Common Pleas, pursuant to Section 504 of the Code,*fn2 entered an order appointing viewers. The Township responded to the court's order by filing preliminary objections to Kraiser's petition. The preliminary objections were filed on August 22, 1980, and asserted only that Kraiser's petition did not state a cause of action.*fn3
On February 20, 1981, after hearing argument on the matter, the trial court entered an order stating that the Township's preliminary objections were sustained and that the petition for viewers was dismissed. However, in so ordering, the trial court did not address the Township's contention that Kraiser had not set forth a cause of action. Instead, the court concluded that Kraiser's claim was barred by a six-year statute of limitations. The court so concluded even though the statute of limitations ...