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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA v. DONALD E. SHARTZER AND LILLIAN A. SHARTZER (01/27/86)

decided: January 27, 1986.

IN RE: CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, OF RIGHT OF WAY FOR LEGISLATIVE ROUTE 50, SECTION 4J, IN THE TOWNSHIP OF WHARTON, CLAIM NO. 2603666. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT
v.
DONALD E. SHARTZER AND LILLIAN A. SHARTZER, HIS WIFE, APPELLEES



Appeal from the Order of the Court of Common Pleas of Fayette County in case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, of Right of Way for Legislative Route 50, Section 4J, in the Township of Wharton, Claim No. 2603666 -- Donald E. Shartzer and Lillian A. Shartzer, his wife v. Commonwealth of Pennsylvania, Department of Transportation, No. 2739 of 1979 G.D.

COUNSEL

Jeffrey L. Giltenboth, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.

Carl P. Izzo, Jr., with him, Robert L. Webster, Webster & Webster, for appellees.

Judges Rogers and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Palladino. Dissenting Opinion by Senior Judge Kalish.

Author: Palladino

[ 94 Pa. Commw. Page 356]

This is an appeal by the Commonwealth of Pennsylvania, Department of Transportation (DOT) from an order of the Court of Common Pleas of Fayette County (trial court) which granted both parties leave to file amended pre-trial statements and ordered the case to proceed to trial. We quash the appeal for lack

[ 94 Pa. Commw. Page 357]

    of jurisdiction because the order at issue is not a final order of the trial court.

DOT condemned real property owned by Donald E. Shartzer and Lillian A. Shartzer (Condemnees) which was being used as a junkyard. The condemnation included the right to enter upon and remove all of the junk located on the property, in order to create a neutral zone for beautification purposes and to erect screens to shield the remaining property's use from view of the highway. A Board of Viewers was appointed, heard testimony, and filed a report containing findings of fact and an award. DOT filed an appeal from the Board of Viewers' award challenging only that portion of the award relating to the value of the land. No appeal was taken by Condemnees. After the filing of pre-trial statements by both DOT and Condemnees, the trial court held a pre-trial conference and entered an opinion which stated that, at the de novo trial, either party may offer testimony concerning the appropriateness of all items of damages awarded by the Board of Viewers. Having thus determined the issues to be tried, the trial court ordered that the case proceed to trial. It is from this order that DOT appeals.

For the reasons which follow, we hold that this order is not a final order and, therefore, this Court is without jurisdiction to consider the merits of DOT's appeal.*fn1 Section 517 of the Eminent Domain Code*fn2 provides:

[ 94 Pa. Commw. Page 358]

All objections, other than to the amount of the award, raised by the appeal shall be determined by the court preliminarily. The court may confirm, modify, change the report or refer it back to the same or other viewers. A decree confirming, ...


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