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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA PUBLIC UTILITY COMMISSION RIGHT--WAY FOR LEGISLATIVE ROUTE 1058 v. COMMONWEALTH PENNSYLVANIA (03/27/89)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 27, 1989.

IN RE: CONDEMNATION BY THE 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 ET AL.
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION. ANDREW BARRON ET AL., APPELLANTS

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.

COUNSEL

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.

Author: Kalish

[ 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 effect, since the court at that time was without subject matter jurisdiction.

The appellants do not contest the propriety or validity of the taking by the PUC. They seek merely a determination of the extent of damages which is exclusively within the jurisdiction of the court of common pleas. The statute of limitations on the claim of the property owner begins to run when the condemnor makes payment of the just condemnation. Here, the order of the PUC indicates that it was condemning on behalf of DOT, which was really the acquiring agency with the power of condemnation. An acquiring agency, with the power of condemnation, is a condemnor.*fn4 It was DOT that paid the estimated just compensation, a duty reserved to the condemnor. When the property owner refused to settle for the estimated just compensation, the matter had to be referred to the common pleas court which had exclusive jurisdiction to determine damages.

The purpose of any statute of limitations is to discourage stale claims which may greatly prejudice the defense of such claims. Ulakovic v. Metropolitan Life Insurance Co., 339 Pa. 571, 16 A.2d 41 (1940). However, this was not a stale claim. Unlike Huss, where the property owner sat on his right until about the time when the statute

[ 124 Pa. Commw. Page 403]

    would bar his right to proceed, from the very beginning DOT was aware of the claim when appellants filed the original petition for the appointment of a Board of View.

Furthermore, where the statute of limitations is pleaded as a defense, the plaintiff may show circumstances occurring within the statutory period which make it unappealable. Where the facts are clear, it is a question of law. Smith v. Bell Telephone Company of Pennsylvania, 397 Pa. 134, 153 A.2d 477 (1959).

Here, it is clear that the circumstances justified the appellants' belief that they were justified in filing originally for the appointment of a Board of View to determine just compensation.

Accordingly, we reverse.

Order

Now, March 27, 1989, the order of the Court of Common Pleas of Fayette County, dated March 23, 1987, is reversed.

Judge MacPhail did not participate in the decision in this case.

Disposition

Reversed.

Dissenting Opinion by Judge Smith:

This Court's decision in Huss v. Department of Transportation*fn1 clearly controls the matter sub judice. Exceptions should not be carved into precedent absent sufficiently substantial factual dissimilarities warranting a different outcome.

In Huss, as here, appellants received estimated just compensation from the Department of Transportation (DOT) for property condemned by order of the Public

[ 124 Pa. Commw. Page 404]

Utility Commission (PUC). Eight days prior to the expiration of the six-year limitations period, appellants petitioned the common pleas court seeking the appointment of viewers. DOT filed preliminary objections which were sustained by the trial court on the basis that Section 2704(b) of the Public Utility Code (PUC Code), 66 Pa. C.S. § 2704(b), required appellants to first file an application for damages with PUC, not the trial court, and accordingly, the trial court lacked jurisdiction to entertain appellants' petition. The appellants thereafter applied to PUC seeking compensation for damages and requesting the matter be transferred to the trial court. DOT filed preliminary objections asserting that the matter was untimely filed. PUC, however, ordered transfer of appellants' claim to the trial court. Appellants then filed an amended petition for the appointment of viewers to which preliminary objections were again filed by DOT, questioning the timeliness of appellants' amended petition. The trial court found that appellants had failed to file their amended petition within the six-year limitations period. Appellants appealed to this Court which determined that appellants' initial petition did not toll the limitations period. This Court held that an application for compensation must first be filed with PUC which then can elect to ascertain the amount of damages or refer the matter to the common pleas court in the county where the appropriated property is situated for the appointment of viewers.

It is erroneous to conclude, as did the majority, that the trial court enjoyed exclusive jurisdiction to determine the extent of damages pursuant to Section 303 of the Eminent Domain Code, 26 P.S. § 1-303, since only the power and procedure of PUC in accomplishing a taking is specifically exempted therefrom. To the contrary, Section 303 states in relevant part that the intent of the

[ 124 Pa. Commw. Page 405]

Eminent Domain Code is "to provide a complete and exclusive procedure and law to govern all condemnations of property for public purposes and the assessment of damages," but is not to be construed "to affect, vary, alter or modify the jurisdiction or power of [PUC]." Section 2704(b) of the PUC Code,*fn2 vests PUC with exclusive jurisdiction to ascertain the amount of damages here with the trial court's jurisdiction being derivative, i.e., dependent solely upon whether PUC elects to refer the issue of damages to the trial court. See Huss.

Apparently as an alternative basis upon which to support its reversal of the trial court, the majority stated that the purpose of any limitations period is to discourage stale claims which may greatly prejudice the defending party.*fn3 The majority then concludes that the instant claim is not stale and that, unlike Huss, appellants here did not sit on their rights since DOT, from the inception, was cognizant of the claim. DOT's awareness of appellants' claim simply bears no relevance to whether the claim is stale since DOT neither has the duty nor authority

[ 124 Pa. Commw. Page 406]

    to ensure that appellants comply with proper procedure prior to expiration of the limitations period to preserve their rights or to force appellants to act expeditiously. To premise staleness of a claim, as does the majority, upon the defending party's cognizance thereof is to emasculate the purpose of the limitations period here and to circumvent the expeditious conclusion of legal actions. It also ignores the twelve-year lapse which occurred here between DOT's payment of estimated just compensation and appellants' 1986 petition for the appointment of viewers.

Nor do the instant circumstances support any belief entertained by appellants that they were justified in filing their initial request with the trial court for the appointment of viewers as the majority also concludes. Nothing in the record suggests that DOT intentionally acted to mislead appellants. Moreover, it appears that appellants were made aware in 1979 of the necessity to first file with PUC prior to petitioning the trial court for the appointment of viewers. See Commonwealth Exhibit A.

Thus, where, as here, PUC has condemned property, the commencement of a proceeding in a common pleas court for the appointment of viewers should be treated as an action without force or effect under Huss as the common pleas court lacks the requisite subject matter jurisdiction to entertain the claim for damages absent PUC's transfer of the matter. Accordingly, appellants' initial petition in the matter sub judice should have been found to be void ab initio and their subsequent petition, filed twelve years after DOT paid appellants' estimated just compensation, barred by the six-year limitations period established in Section 5527(4) the Judicial Code.


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