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.
[ 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 ...