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COMMONWEALTH PENNSYLVANIA v. ROLLINS OUTDOOR ADVERTISING CO. (08/25/83)

decided: August 25, 1983.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT
v.
ROLLINS OUTDOOR ADVERTISING CO., INC., APPELLEE



Appeals from the Orders of the Court of Common Pleas of Philadelphia County in the case of Commonwealth of Pennsylvania, Department of Transportation v. Rollins Outdoor Advertising, Inc., No. 1424 November Term, 1980.

COUNSEL

Richelle D. Sanders, Assistant Counsel, with him Ward T. Williams, Chier Counsel, and Jay C. Waldman, General Counsel, for appellant.

Leon W. Silverman, for appellee.

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

Author: Williams

[ 76 Pa. Commw. Page 555]

Consolidated for argument and disposition are two appeals from orders of the Court of Common Pleas of Philadelphia County dismissing the Pennsylvania Department of Transportation's (PennDOT or Appellant) complaint in ejectment (order of March 26, 1981) and denying PennDOT's motion for the issuance of writ of seizure (order of July 13, 1981).

In April 1975, PennDOT and Rollins Outdoor Advertising Company, Inc. (Rollins or Appellee),

[ 76 Pa. Commw. Page 556]

    entered into a lease agreement whereby PennDOT agreed to lease, on a renewable month to month basis, eleven (11) outdoor advertising billboards to Rollins. On August 3, 1978, PennDOT apprised Rollins that the lease would be terminated as of September 30, 1978, and that the lease would be awarded, effective October 1, 1978, to the highest bidder.

Upon Rollins' failure to cease its use of the billboards, and seeking to regain possession of its property, PennDOT filed a complaint in ejectment in common pleas court. Concluding that ejectment is an action for the recovery of land, and that the eleven (11) billboards are not realty either in common law or within the intendment of the ejectment procedural rules, Pa. R.C.P. Nos. 1051-58, the Court, in its March 26, 1981 order, sustained Rollins' preliminary objections in the form of a demurrer to the complaint in ejectment and granted PennDOT twenty (20) days in which to amend its complaint. PennDOT subsequently appealed from that order to this Court on April 15, 1981 (No. 1947 Commonwealth Docket 1981).

PennDOT further filed a motion for the issuance of a writ of seizure and an amended complaint in replevin in the common pleas court on April 10, 1981. On July 13, 1981, after hearing oral argument and concluding that the pendency of PennDOT's appeal from the order of March 26, 1981 divested it of jurisdiction, the common pleas court denied PennDOT's motion for writ of seizure. PennDOT timely appealed from the July 13, 1981 order of the court of common pleas to this Court (No. 1882 Commonwealth Docket 1981).

Before the merits of PennDOT's appeal from the March 26, 1981 order of the court of common pleas dismissing, with leave to amend, appellant's complaint in ...


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