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O.S.C. COMPANY v. LACKAWANNA RIVER BASIN SEWER AUTHORITY (12/09/88)

decided: December 9, 1988.

O.S.C. COMPANY, APPELLANT
v.
LACKAWANNA RIVER BASIN SEWER AUTHORITY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Wayne County, in the case of O.S.C. Company v. Lackawanna River Basin Sewer Authority, No. 244-1986, In Ejectment.

COUNSEL

Arthur J. Rinaldi, Rinaldi & Rinaldi, for appellant.

Robert A. Mazzoni, for appellee.

Judges Doyle and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Doyle. Judge MacPhail did not participate in the decision in this case.

Author: Doyle

[ 121 Pa. Commw. Page 571]

Before us for consideration is the appeal of O.S.C. Company (OSC) from an order of the Court of Common Pleas of Wayne County granting the motion of Lackawanna River Basin Sewer Authority (Authority) for summary judgment. We affirm.

In February of 1986, OSC filed a complaint in ejectment against the Authority wherein it alleged that the Authority had no valid right, title or interest in certain property the Authority had condemned by the filing of a Declaration of Taking some sixteen years previously in June of 1970. The subject premises of the complaint is a parcel of land owned by OSC located on the northern side of Main Street, in Clinton Township, Wayne County. The Authority invoked the power of eminent domain and constructed a sewer line as part of its sewer system. The specific nature of the taking involved a fifteen foot easement across the property of OSC for the purpose of constructing, maintaining, repairing and reconstructing sewer mains, pipes, laterals and the like as part of the construction of the entire system.

In its motion for summary judgment, the Authority argued that it is entitled to an easement pursuant to a Notice of Condemnation Petition and Declaration of Taking filed in Wayne County on June 29, 1970, and that it has acquired the easement pursuant to the Pennsylvania

[ 121 Pa. Commw. Page 572]

Eminent Domain Code*fn1 (Code). OSC answered, contesting the condemnation procedure employed by the Authority, and alleged that the Authority had not met the requirements of the Code because it had not served its Notice of Condemnation on OSC and had not filed a petition to take possession.

The common pleas court granted the Authority's motion for summary judgment and held that Section 406 of the Code, 26 P.S. ยง 1-406, provided the condemnee, OSC, with the exclusive method for challenging the condemnation procedures followed by the Authority. That Section provides for the filing of preliminary objections by the condemnee as the exclusive method for challenging a taking. The court reasoned that the Code is clear and unambiguous as to the procedures which must be followed by a condemnee when challenging the procedure employed by a condemnor. Thus, it granted the Authority's motion for summary judgment. This appeal followed.

This Court may reverse the trial court's entry of summary judgment only where there has been an error of law or a clear or manifest abuse of discretion. O'Reilly v. Fox Chapel Area School District, 106 Pa. Commonwealth Ct. 516, 527 A.2d 581 (1987). OSC here raises several issues on appeal, alleging (1) that the court below committed an abuse of discretion by granting the Authority's motion for summary judgment where there was no competent admissible evidence to show that the Authority gave notice of the condemnation to OSC; (2) that the court committed an error of law when it considered as ...


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