Appeal from the Order of the Court of Common Pleas of Fayette County, in the case of In Re: Condemnation by Commonwealth of Pennsylvania Public Utility Commission of Right-of-Way for Legislative Route 1058, Section A04, a Limited Access Highway in South Union Township, Andrew Barron and Helen Barron and Frank Horvath and Anna Horvath v. Commonwealth of Pennsylvania, Department of Transportation, No. 978 of 1979, G.D. and No. 977 of 1979, G.D.
Anne N. John, with her, Simon B. John, John & John, for appellants.
Jeffrey L. Giltenboth, Assistant Counsel, with him, Kathryn Linn-Stevenson, Assistant Counsel, and John L. Heaton, Chief Counsel, for appellee.
Judges Colins and Smith, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish. Judge MacPhail did not participate in the decision in this case. Dissenting Opinion by Judge Smith.
[ 124 Pa. Commw. Page 400]
Appellants, Andrew and Helen Barron and Frank and Anna Horvath, appeal an order of the Court of Common Pleas of Fayette County which dismissed their petition for the appointment of a Board of View. We reverse.
On or about April 2, 1974, by order of the Pennsylvania Public Utility Commission (PUC), the premises of Andrew and Helen Barron and Frank and Anna Horvath were appropriated for the purpose of the construction of a grade crossing above railroad tracks.*fn1
[ 124 Pa. Commw. Page 401]
The PUC order indicated that the condemnation was pursuant to an application of the Pennsylvania Department of Transportation (DOT) for approval of the construction of a crossing where state highway route 1058 will cross above the grade of the railroad tracks of Penn Central Transportation Company and The Baltimore and Ohio Railroad Company. The PUC ordered that the allocation of the costs and expenses incident to the appropriation for the improvement shall be at the sole cost and expense of DOT.
On July 4, 1974, DOT paid to appellants estimated just compensation. The appellants filed, with the Common Pleas Court of Fayette County, a petition for the appointment of a Board of View to ascertain just compensation due from DOT. A Board of View was appointed in 1979, but never took any action.
On July 8, 1986, appellants filed a petition to transfer jurisdiction nunc pro tunc to the common pleas court for the purpose of determining damages.*fn2 The PUC granted appellants' petition and referred the matter to the Common Pleas Court of Fayette County, for a determination of the amount of damages. The appellants then filed an amended petition for the appointment of viewers, and DOT filed a motion to dismiss the petition. The court granted DOT's motion, holding that the appellants' petition was not filed within the applicable six-year statute of limitations.*fn3
[ 124 Pa. Commw. Page 402]
The court's holding was based on Huss v. Department of Transportation, 99 Pa. Commonwealth Ct. 386, 512 A.2d 1356 (1986), where it was held that unless the property owner first files for compensation with the PUC, then any prior action for the appointment of a Board of View is a nullity, without force and ...