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DETERMINATION WHETHER A DE FACTO TAKING HAS OCCURRED. COMMONWEALTH PENNSYLVANIA (04/02/84)

decided: April 2, 1984.

IN RE: DETERMINATION OF WHETHER A DE FACTO TAKING HAS OCCURRED. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT


Appeal from the Order of the Court of Common Pleas of Cambria County in case of In Re: Determination of Whether a De Facto Taking has occurred. Lakeview Motel, Inc., No. 1982-512.

COUNSEL

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

Richard T. Williams, Sr., for appellee.

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

Author: Blatt

[ 81 Pa. Commw. Page 264]

The Department of Transportation (Department) appeals here an order of the Court of Common Pleas of Cambria County dismissing its preliminary objections to a petition filed by Lakeview Motel, Inc. (Lakeview) in which Lakeview sought a declaratory judgment pursuant to the Declaratory Judgments Act, 42 Pa. C.S. §§ 7531-7541.*fn1 The Department's preliminary objections alleged, among other objections, that jurisdiction properly lies with the Commonwealth Court pursuant to Section 761(a)(1) of the Judicial Code (Code), 42 Pa. C.S. § 761(a)(1).*fn2

An order dismissing preliminary objections is ordinarily interlocutory and, therefore, not appealable, Husted v. Board of Directors of Wellsboro Area School District, 57 Pa. Commonwealth Ct. 520, 427 A.2d 272 (1981), unless expressly made so by statute. Griesinger v. Workmen's Compensation Appeal Board, 51 Pa. Commonwealth Ct. 408, 414 A.2d 742 (1980). We must determine preliminarily, therefore,

[ 81 Pa. Commw. Page 265]

    whether or not any statutory authority exists which would afford the Department the right to appeal from the denial of its preliminary objections.

Section 5105(c) of the Code, 42 Pa. C.S. § 5105(c) provides that the Supreme Court of Pennsylvania has the authority to promulgate general rules establishing rights to appeal from specific classes of interlocutory orders. The rules so promulgated under Section 5105(c) include Pa. R.A.P. 311 which lists the interlocutory appeals that may be taken as of right, and Pa. R.A.P. 312 which provides for interlocutory appeals by permission.

Pa. R.A.P. 311(b) allows for an appeal:

     as of right from an order in a civil action or proceeding sustaining the venue of the matter or jurisdiction over the person or over real or personal property if:

(1) the plaintiff, petitioner or other party benefitting from the order files of record within ten days after the entry of the order an election ...


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