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decided: July 31, 1986.


Appeal from the Order of the Court of Common Pleas of Montgomery County, in case of Edward H. Huss and John J. Pavlock v. Pennsylvania Department of Transportation et al., No. 82-05358.


James F. Kilcur, for appellants.

Scott M. Olin, Assistant Counsel, with him, Edward D. Werblun, Assistant Counsel, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellee.

President Judge Crumlish, Jr., Judge Barry, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt. Dissenting Opinion by Judge Barry.

Author: Blatt

[ 99 Pa. Commw. Page 387]

Edward H. Huss and John J. Pavlock (petitioners) appeal an order of the Court of Common Pleas of Montgomery County which dismissed their Amended Petition for a Board of Viewers.

The petitioners' property was condemned by an order of the Pennsylvania Public Utilities Commission (Commission) in 1975 to enable the Pennsylvania Department of Transportation (Department) to relocate a portion of a state highway in order to accommodate reconstruction of a bridge spanning a railway*fn1 and, on April 19, 1976, the Department paid to the petitioners an estimate of just compensation for the condemned property. Unable to obtain a larger amount from the Department to settle their claim, the petitioners, on April 12, 1982, filed a petition with the common pleas court seeking the appointment of a Board of View. Preliminary objections were filed by the Department, and these were sustained by the court on the basis that Section 2704(b) of the Public Utilities Code (PUC Code)*fn2

[ 99 Pa. Commw. Page 388]

    requires that an application for such damages must be filed with the Commission. The court noted accordingly that it lacked jurisdiction to consider the petition, which it consequently dismissed on November 22, 1982. The petitioners thereafter applied to the Commission for compensation for damages and requested that the matter be submitted to the common pleas court to determine the amount. The Department filed preliminary objections to this application, asserting that the matter was untimely filed, and the Commission thereafter ordered the claim submitted to the court of common pleas without prejudice to the Department's right to assert its motion to dismiss. The petitioners afterwards filed in the common pleas court their Amended Petition for Appointment of a Board of View which, aside from its reference to the application to the Commission and the ensuing order, was substantially identical to the first petition. The Department again filed preliminary objections, challenging the timeliness of the amended petition, and the court agreed, finding that the amended petition had not been filed within the six year limitations period established by Section 5527(4) of the Judicial Code, 42 Pa. C.S. § 5527(4).*fn3

The petitioners contend that the court erred in dismissing their amended petition as untimely filed. They argue that their original petition was timely filed on April 12, 1982 by virtue of the six-year period of limitations established by Section 5527(4) of the Judicial Code. It is argued that the Amended Petition, filed

[ 99 Pa. Commw. Page 389]

April 9, 1983, was timely as a consequence of the operation of the savings provision set forth in Section 5535(a) of the Judicial Code, which pertinently provides:

(a) Termination of prior matter. --

(1) If a civil action or proceeding is timely commenced and is terminated, a party . . . may, notwithstanding any other provision of this subchapter, commence a new action or proceeding upon the same cause of action within one year after the termination and any other party may interpose any defense or claim which might have been interposed in the original action or proceeding.

42 Pa. C.S. § 5535(a). Exempted from the benefits of the savings clause are personal injury actions and actions terminated by voluntary non-suit, discontinuance, final judgment on the merits or dismissal for failure to prosecute the matter. 42 Pa. C.S. § 5535(a)(2).

We do not believe, however, that the petition initially filed here for the appointment of a Board of View constituted the commencement of an action or proceeding as could have been "saved" by the statute.

It should first be noted that the PUC Code vests the Commission with exclusive power to appropriate property such as here concerned, and establishes procedures to effect such appropriations. Section 2702 of the PUC Code, 66 Pa. C.S. § 2702.*fn4 And, Section 2704 provides for the determination of the amount of compensation to be paid to an injured property owner:

[ 99 Pa. Commw. Page 390]

    instead be filed with the Commission, which has the authority to determine the amount in question or to refer it to a court of common pleas for the appointment of a Board of View. The jurisdiction of a common pleas court to appoint a Board of View to determine damages in these matters is, therefore, derivative, being dependent solely upon the Commission's action.

Accordingly, where, as in the instant case, the Commission has condemned property, the commencement of a proceeding for the appointment of a Board of View in a court of common pleas is an action without force or effect. The filing of the Amended Petition in the common pleas court was, in any event, superfluous, if not inconsequential, inasmuch as the matter had been referred there by the Commission, as provided by the PUC Code.

We find, therefore, no authority to support the petitioners' assertion that either of their petitions for the appointment of a Board of View was of any effect such that the first could have "saved", or been revived by, the filing of the Amended Petition.*fn5

The petitioners also allege that the statute of limitations should not deny them their right to just compensation for the taking of their property. As the record indicates, however, the petitioners were paid estimated just compensation, and it was their decision to wait until the statute had almost expired which rendered problematic their effort to obtain relief in the wrong forum. There is no challenge here to the legitimacy of a

[ 99 Pa. Commw. Page 392]

    statute of limitations. And, it should be noted that an important public policy undergirds such statutes which, because they stimulate activity while punishing negligence, promote repose by providing stability in our affairs, and consequently are important to society and favored in the law. Schmucker v. Naugle, 426 Pa. 203, 231 A.2d 121 (1967).

We will, therefore, affirm the order of the Court of Common Pleas of Montgomery County.


And Now, this 31st day of July, 1986, the order of the Court of Common Pleas of Montgomery County in the above-captioned matter is affirmed.



Dissenting Opinion by Judge Barry:

I dissent. I believe the majority opinion has taken too narrow an interpretation of 42 Pa. C.S. 5535(a)(2). Clearly, in my mind, a petition for the appointment of a Board of View is "saved" by the statute.

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