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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA (08/29/83)

COMMONWEALTH COURT OF PENNSYLVANIA


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 which provides, in part, that:

The following actions and proceedings must be commenced within six years:

(4) A Proceeding in inverse condemnation, if property has been injured but no part thereof has been taken, or if the condemnor has made payment in accordance with section 407(a) or (b) (relating to possession and payment of compensation) of . . . the "Eminent Domain Code." (Emphasis added.)

DOT, arguing that Section 5527(4) of the Judicial Code is limited to proceedings in inverse condemnation, contends that the correct period of limitations in actual condemnation proceedings is found in Section 5527(6)*fn4 of the Judicial Code, which provides a six-year period of limitations in:

(6) Any civil action or proceeding which is neither subject to another limitation specified in this subchapter nor excluded from the application of a period of limitation by section 5531 (relating to no limitation).

Although subsections (4) and (6) of Section 5527 both provide for six-year limitation periods, DOT argues that, under subsection (6), the period begins to run from the time of the taking, but not from the payment of estimated just compensation. Thus, DOT continues, under the Judicial Code the applicable statute of limitations has been reduced.*fn5 DOT contends that,

[ 76 Pa. Commw. Page 583]

    consequently, the operation of Section 25(a) of the Act of July 9, 1976, P.L. 586, is triggered:

Effect of Judicial Code on Periods of Limitation

(a) Any civil action or proceeding:

(1) the time heretofore limited by statute for the commencement of which is reduced by any provision of [the Judicial Code]. . . may be commenced within one year after the effective date of this act [i.e., June 27, 1978], or within the period heretofore limited by statute, whichever is less. . . . (Emphasis added.)

Applying its thesis to the facts, DOT argues that Simon had only until June 27, 1979 (one year after the effective date of the Judicial Code) to petition for viewers since this is less time than allowed under the repealed Section 524, which would have given Simon until March 11, 1983, to file a petition. Since the argument concludes, Simon did not petition for viewers until February 1, 1982, his action is barred.

We reject DOT's argument. Section 5527(4) applies to inverse condemnations as well as actual takings. Subsection (4), by the language "if the condemnor has made payment in accordance with section 407(a) or (b) . . . of . . . the 'Eminent Domain Code,'" specifically refers to the payment of estimated just compensation in relation to possession of the property by the condemnor. Although not couched in precisely the same terminology as was the repealed Section 524, Section 5527(4) of the Judicial Code was intended to, and did,

[ 76 Pa. Commw. Page 584]

    replace that repealed provision. Accordingly, Simon had six years from the payment of estimated just compensation in which to petition the common pleas court for the appointment of viewers. Since Simon filed his petition well within the allotted time, DOT's preliminary objections must be denied.

Affirmed.

Order

The Westmoreland County Common Pleas Court order, No. 762 of 1982, dated April 23, 1982, is hereby affirmed.

Disposition

Affirmed.


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