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GREISLER BROTHERS v. COMMONWEALTH PENNSYLVANIA (02/18/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 18, 1987.

GREISLER BROTHERS, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE

Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Greisler Brothers v. Commonwealth of Pennsylvania, Department of Transportation, No. 2009 February Term, 1968.

COUNSEL

Lewis Kates, Kates & Mazzocone, for appellant.

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

Judges Craig and Doyle, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 104 Pa. Commw. Page 104]

This is the appeal of Greisler Brothers (Appellant) from an order of the Court of Common Pleas of Philadelphia County appointing a Board of Viewers in the Appellant's inverse condemnation case against the Department of Transportation (DOT). The court ordered the Board of Viewers to assess damages and dismissed Appellant's petition to establish December 1, 1969 as the date of condemnation, pending the recommendation of a date by the Board of Viewers.*fn1

[ 104 Pa. Commw. Page 105]

This case has a long and tortuous procedural history which is recounted in Department of Transportation v. Greisler Brothers, 68 Pa. Commonwealth Ct. 493, 449 A.2d 832 (1982). The sole issue raised in the present appeal is whether the court of common pleas erred in directing the Board of Viewers to recommend a date of condemnation.

For the reasons which follow, we hold that this Court is without jurisdiction to consider the merits of Appellant's appeal.*fn2 The court of common pleas, pursuant to Section 504 of the Eminent Domain Code (Code),*fn3 appointed a Board of Viewers to assess damages and recommend a date of taking. Section 504 of the Code provides for the appointment of a Board of Viewers and states that "[a]ny objection to the appointment

[ 104 Pa. Commw. Page 106]

    of viewers not theretofore waived may be raised by preliminary objections filed within twenty days after receipt of notice of the appointment of viewers." In City of Philadelphia v. Airportels, Inc., 14 Pa. Commonwealth Ct. 617, 322 A.2d 727 (1974) we held that this language meant that all disputes of fact and law and all objections to the appointment of viewers should be raised by preliminary objections. Although in an inverse condemnation case these preliminary objections are generally filed by the condemnor, where, as here, the condemnee has raised such an issue with regard to the appointment of viewers, the procedure under Section 504 of the Code is the same and requires that the condemnee file preliminary objections to the lower court's order of appointment. Appellant, instead of filing preliminary objections, improperly filed an appeal to this Court.

Moreover, we also find that the order appealed from is not a final order; rather, it is an unappealable interlocutory order.*fn4 A final order terminates the litigation between the parties, disposes of the entire case, or precludes a party from presenting the merits of his or her claim. Piltzer v. Independence Federal Savings and Loan Association, 456 Pa. 402, 319 A.2d 677 (1974). See Kratz v. Board of Commissioners of Upper Gwynedd Township, 88 Pa. Commonwealth Ct. 108, 488 A.2d 670

[ 104 Pa. Commw. Page 107]

(1985). The appointment of a Board of Viewers with instructions to recommend a date of taking does not dispose of this case nor does it preclude a party from presenting the merits of his claim. Even with the failure to file preliminary objections, Appellant can appeal the date recommended by the Board of Viewers to the court of common pleas,*fn5 and the court may then on appeal "confirm, modify, change the report or refer it back to the same or other viewers."*fn6

Since the order appealed from here is an unappealable interlocutory order, this appeal is quashed.

Order

Now, February 18, 1987, the appeal of Greisler Brothers from the order of the Court of Common Pleas of Philadelphia County dated October 15, 1984 is hereby quashed.

Disposition

Appeal quashed.


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