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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA v. COMMONWEALTH PENNSYLVANIA (03/06/87)

decided: March 6, 1987.

IN RE: CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION OF RIGHT OF WAY FOR LEGISLATIVE ROUTE 132, SECTION 14, CLAIM NO. 230941. EARL C. & THEODORE SUPPLEE, APPELLANTS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Delaware County, in case of Earl C. and Theodore H. Supplee v. Commonwealth of Pennsylvania, Department of Transportation, No. 69-11645.

COUNSEL

Donald T. Petrosa, Petrikin, Wellman, Damico, Carney & Brown, for appellants.

Kenneth E. Kendell, Assistant Counsel, with him, J. Matthew Wolfe, Assistant Counsel, Spencer A. Manthorpe, Chief Counsel, and Henry G. Barr, General Counsel, for appellee.

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

Author: Colins

[ 105 Pa. Commw. Page 489]

This is an appeal from an order by the Delaware County Court of Common Pleas (trial court) dismissing appellants' Petition for a Board of View for lack of prosecution. We affirm the trial court for the reasons given herein.

On September 11, 1969, the Commonwealth filed a declaration of taking with regard to a three hundred (300) foot by eight (8) foot swath of appellants' land bordering Edgemont Avenue in Delaware County. On December 23, 1969, the Commonwealth paid appellants estimated just compensation of Eleven Thousand Two Hundred Dollars ($11,200.00). On or about March 31, 1975, appellants filed a Petition for the Appointment of a Board of View. No further action was taken by

[ 105 Pa. Commw. Page 490]

    the appellants for almost ten years. Then, on February 19, 1985, the Commonwealth filed a motion to non-pros appellants' petition for lack of prosecution. The trial court scheduled a hearing on the Commonwealth's motion for March 25, 1985. This hearing was rescheduled for April 8, 1985, at which time both parties, represented by counsel, appeared before the trial court and argued their positions with regard to the non-pros. The trial court, on the same date, dismissed the action for failure to prosecute, filing its opinion on September 25, 1985. The instant appeal was then filed in a timely fashion.

On appeal to this Court, appellants argue that the trial court abused its discretion in dismissing the action. We are not so persuaded.

The Pennsylvania Supreme Court clearly delineated the scope of review regarding the granting of a non-pros in Gallagher v. Jewish Hospital Association of Philadelphia, 425 Pa. 112, 228 A.2d 732 (1967), when it stated:

It is well settled law that the question of granting a non pros because of the failure of the plaintiff to prosecute his action within a reasonable time rests within the discretion of the lower court and the exercise of such discretion will not be ...


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