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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA (08/29/83)

decided: August 29, 1983.

IN RE: CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, OF RIGHT OF WAY FOR LEGISLATIVE ROUTE 56677-000 ETC. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT


Appeal from the Order of the Court of Common Pleas of Westmoreland County in the case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation of Right of Way for Legislative Route 56677-000 Railroad Spur and Legislative Route 1015, Section D-20, property of Joseph E. Simon and Melva D. Simon, his wife, v. Commonwealth of Pennsylvania, Department of Transportation, No. 762 of 1982.

COUNSEL

Walter F. Cameron, Jr., Assistant Counsel, with him Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.

John N. Scales, Scales, DeRose and Murray, for appellee.

President Judge Crumlish, Jr. and Judges Williams, Jr. and Barbieri, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 76 Pa. Commw. Page 581]

The Pennsylvania Department of Transportation (DOT) appeals a Westmoreland County Common Pleas Court order denying its preliminary objections to a petition for the appointment of viewers in a condemnation case. We affirm.

A portion of Joseph Simon's land was condemned under the Pennsylvania Eminent Domain Code*fn1 on September 29, 1976; estimated just compensation was paid on March 11, 1977. On February 1, 1982, Simon petitioned the common pleas court for the appointment of viewers. DOT filed preliminary objections, contending that the petition was barred by the statute of limitations.

Section 524 of the Eminent Domain Code*fn2 (in effect at the time of the taking) set a six-year limitation on petitions for appointment of viewers, the period commencing when the condemnor paid estimated just compensation :

Limitation Period. -- A petition for the appointment of viewers for the assessment of damages for a condemnation or compensable injury may not be filed after the expiration of six years from the date on which the condemnor made payment in accordance with section 407(a) or (b) of [the Eminent Domain Code] where the property or any part thereof has been taken, or from the date of injury where the property has been injured but no part thereof has been taken. If such petition is not filed before the expiration of such period, such payment shall be

[ 76 Pa. Commw. Page 582]

    considered to be in full satisfaction of the damages. (Emphasis added.)

Section 524, however, was repealed in 1978, and was replaced by Section 5527(4) of the Judicial Code*fn3 ...


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