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ANN SPORER (FEE SIMPLE OWNER) AND INTERSTATE OUTDOOR ADVERTISING COMPANY (LESSEE) v. COMMONWEALTH PENNSYLVANIA (10/14/88)

decided: October 14, 1988.

ANN SPORER (FEE SIMPLE OWNER) AND INTERSTATE OUTDOOR ADVERTISING COMPANY (LESSEE), APPELLANTS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the order of the Court of Common Pleas of Lackawanna County, in the case of Ann Sporer (Fee Simple Owner) and Interstate Outdoor Advertising Company (Lessee) v. Commonwealth of Pennsylvania, Department of Transportation, No. 83 Civ. 558.

COUNSEL

Keith Coslett, with him, Edward Erickson and E. Charles Coslett, Coslett & Coslett, for appellants.

Thomas P. Kennedy, Assistant Counsel, for appellee.

Judges Doyle, Palladino and Smith, sitting as a panel of three. Opinion by Judge Smith. This decision was reached prior to the resignation of Judge MacPhail.

Author: Smith

[ 122 Pa. Commw. Page 265]

Appellants, the Estate of Ann Sporer*fn1 (Sporer) and Interstate Outdoor Advertising Company*fn2 (Interstate) appeal from the final order of the Court of Common Pleas of Lackawanna County which refused to vacate a prior order dated June 15, 1987 granting a judgment of non pros in favor of the Commonwealth of Pennsylvania, Department of Transportation (DOT), and dismissing with prejudice Appellants' petition for the appointment of a board of viewers. Issues presented for review pertain to whether the trial court abused its discretion in granting a non pros judgment and in dismissing Appellants' action in light of outstanding preliminary objections filed by DOT. The trial court is affirmed.

Appellants filed their petition for the appointment of a board of viewers on February 7, 1983 alleging a compensable taking as a result of action taken by DOT. Certain permits held by Interstate for constructing billboards on property leased from Sporer were revoked by DOT on February 8, 1977 on the ground that trees and/or vegetation located within the right-of-way of a state highway were unlawfully cut. Appellant asserts that revocation of the permits was in the nature of a de facto condemnation.

DOT filed preliminary objections to Appellants' petition on February 28, 1983 followed by a memorandum in support thereof. The parties subsequently entered into a stipulation on April 13, 1983 which provided Appellants thirty days from the date of stipulation to secure new counsel and sixty days to reply to DOT's memorandum. On May 9, 1983, Appellants procured new counsel who filed a brief in opposition to DOT's preliminary objections on October 12, 1983. Admissions, production

[ 122 Pa. Commw. Page 266]

    of documents, and depositions were requested by DOT on February 27, 1984, followed on March 15, 1984 by Appellants' petition for a protective order and stay of proceedings. After hearing on April 13, 1984, the trial court denied Appellants' petition for a protective order and stay.

On May 4, 1987, DOT filed a motion to dismiss the action, and alternatively, a motion for sanctions, based upon Appellants' failure to comply with discovery requests, to file briefs, and to engage new counsel for a three-year period*fn3 as well as prejudice to DOT as a result of Appellants' failures. Argument on DOT's motion was scheduled for June 15, 1987. Although properly notified, Appellants failed to respond either by answer as required by the trial court or appearance on the argument date. The trial court thus granted DOT's motions on June 15, 1987 and dismissed Appellants' action with prejudice. Appellants responded with a motion for reargument which was scheduled for September 15, 1987. The trial court, after reargument, determined that Appellants failed to present a compelling reason for the three-year period of inactivity, and accordingly, refused to vacate the previous order of June 15, 1987. Hence, this appeal.

This Court's limited scope of review is to determine whether the trial court abused its discretion in dismissing Appellants' case ...


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