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CONDEMNATION REAL ESTATE BY CARMICHAELS-CUMBERLAND JOINT SEWER AUTHORITY v. CARMICHAELS-CUMBERLAND JOINT SEWER AUTHORITY (04/04/85)

decided: April 4, 1985.

IN RE: CONDEMNATION OF REAL ESTATE BY CARMICHAELS-CUMBERLAND JOINT SEWER AUTHORITY, CARMICHAELS MINING MACHINE REPAIR CO. CARMICHAELS MINING MACHINE REPAIR CO., APPELLANT
v.
CARMICHAELS-CUMBERLAND JOINT SEWER AUTHORITY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Greene County in case of In Re: Condemnation of real estate by Carmichaels-Cumberland Joint Sewer Authority, Carmichaels Mining Machine Repair Co. v. Carmichaels-Cumberland Joint Sewer Authority, Misc. No. 55, 1982.

COUNSEL

Charles O. Zebley, Jr., with him, Ernest P. DeHaas, III, Coldren, DeHaas & Radcliffe, for appellant.

James Hook, with him, Gregory C. Hook, Hook and Hook, for appellee.

Judges Craig, Colins and Palladino, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 88 Pa. Commw. Page 542]

Carmichaels Mining Machine Repair Company (Carmichaels) appeals from an order of the Court of Common Pleas of Greene County, which, pursuant to an evidentiary hearing, sustained the preliminary objections of the Carmichaels-Cumberland Joint Sewer Authority (authority), and dismissed as untimely Carmichaels' petition for the appointment of viewers. The issue for our determination is whether the trial court erred in determining the applicable statute of limitations.

The facts as the trial court found them indicate that the authority had filed plans for the installation of a sewer line on Carmichaels' property with the office of the recorder of deeds on February 11, 1975; without filing a declaration of taking, the authority entered Carmichaels' property and installed the sewer line on August 5th and 6th, 1975. Carmichaels received no compensation from the authority, and, on October 8, 1982, it filed a petition for the appointment of viewers pursuant to section 502 of the Eminent Domain Code, Act of June 22, 1964, Special Sess. P.L. 84, as amended, 26 P.S. ยง 1-502. The trial court sustained

[ 88 Pa. Commw. Page 543]

    the authority's preliminary objection that the six-year statute of limitations in effect in 1975 had expired and therefore the petition was untimely.

Carmichaels contends that the trial court erred in failing to apply the twenty-one-year statute of limitations which was in effect when it filed its petition for viewers.

In 1975, when the authority entered Carmichaels' property, the Eminent Domain Code provided that:

A petition for the appointment of viewers . . . may not be filed after the expiration of six years from the date on which the condemnor made payment in accordance with . . . this act where the property or any part thereof has been taken, or from the date of injury ...


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