Appeal from the Order of the Court of Common Pleas of Luzerne County in case of John J. Malone, Jr. and Roberta M. Malone, his wife v. The Mountaintop Area Joint Sanitary Authority, No. 646-C of 1981.
Chester F. Dudick, Jr., with him Joseph P. Mellody, Jr., Hourigan, Kluger & Spohrer Associates, for appellant.
John L. McDonald, for appellees.
President Judge Crumlish, Jr. and Judges Rogers and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.
[ 73 Pa. Commw. Page 218]
The instant case has as its genesis a complaint in equity by Mr. and Mrs. Malone, owners of property in Wright Township, Luzerne County, Pennsylvania, against the Mountaintop Area Joint Sanitary Authority (Authority) alleging that the diversion of storm water onto their land by the Authority by reason of the construction of a sanitary sewer system, entitles them to equitable relief. After extensive pleadings and a trial which was concluded, according to the Authority's brief, after the Malones' case was presented and before the Authority could present any evidence, a decree nisi was entered by the chancellor transferring the case to the law side of the Court. The decree read as follows:
NOW, this 3rd day of February, 1981, the above-captioned action is transferred to the law side of the Court. The Court is also of the opinion
[ 73 Pa. Commw. Page 219]
that this is without prejudice to the Plaintiffs since the action sounds in De Facto, Condemnation to proceed under the Eminent Domain Code.
This adjudication which I have just made shall be transcribed and filed in the office of the Prothonotary.
The parties have ten (10) days from today to file exceptions in accordance with the rules of Civil Procedure.
It appears that no exceptions were filed to the decree nisi but there is nothing in the record to indicate that the decree was made absolute.
On February 18, 1981, the Malones filed a petition for the appointment of a board of view pursuant to the provisions of Section 502(e) of the Eminent Domain Code, Act of June 22, 1964, P.L. 84, as amended, 26 P.S. § 1-502(e) alleging a de facto taking by the Authority. The petition contained a paragraph which incorporated into the eminent domain proceedings the entire proceedings of the equity action. ...