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11/19/97 DAVID A. KRULAC v. COMMONWEALTH

November 19, 1997

DAVID A. KRULAC, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA GAME COMMISSION



Appealed From No. 2029 S 1995. Common Pleas Court of the County of Dauphin. Judge EVANS.

Before Honorable Doris A. Smith, Judge, Honorable Rochelle S. Friedman, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge. Opinion BY Senior Judge Mirarchi.

The opinion of the court was delivered by: Mirarchi

OPINION BY SENIOR JUDGE MIRARCHI

FILED: November 19, 1997

David A. Krulac (Krulac) appeals from an order of the Court of Common Pleas of Dauphin County dismissing his action in ejectment filed against the Pennsylvania Game Commission (Commission) for lack of jurisdiction. The issue raised on appeal is whether the Board of Property has exclusive original jurisdiction over Krulac's action in ejectment and claim for damages under Section 1207 of The Administrative Code (Code) of 1929, Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 337.

On May 15, 1995, Krulac filed a complaint in ejectment against the Commission, alleging that he is the legal owner of the land located in Lykens Township and Wiconisco Township, Dauphin County, having acquired title to the land from George W. Umholtz, Jr. by deed recorded on December 5, 1989, and that the Commission, the owner of a similarly configured adjoining tract of land, has been unlawfully occupying his land claiming its ownership. Krulac sought possession of the land and damages caused by the Commission's trespass over his land.

The Commission filed preliminary objections to the complaint, alleging, inter alia, that the trial court lacked subject matter jurisdiction under Section 1207 of the Code, which vests in the Board of Property exclusive jurisdiction over an action involving a claim of an interest in lands occupied or claimed by the Commonwealth. *fn1 After oral argument, the trial court dismissed Krulac's action, concluding that the Board of Property has exclusive jurisdiction to hear and determine Krulac's action in ejectment and claim for damages.

Section 1207 of the Code sets forth the powers and duties of the Board of Property as follows:

The Board of Property shall, subject to any inconsistent provisions in this act contained, continue to exercise the powers and perform the duties by law vested in and imposed upon the said board.

It shall hear and determine, in all cases of controversy on caveats, in all matters of difficulty or irregularity touching escheats, warrants on escheats, warrants to agree, right of preemption, promises, imperfect titles, or otherwise, which heretofore have or hereafter may arise in transacting the business of the Land Office in the Department of Community Affairs : Provided, however, That no determination of the Board of Property shall be deemed, taken and construed to prevent either of the parties from bringing their action at the common law, either for the recovery of possession or determining damages for waste or trespass. (Emphasis added.)

The Board of Property shall also have jurisdiction to hear and determine cases involving the title to land or interest therein brought by persons who claim an interest in the title to lands occupied or claimed by the Commonwealth . (Emphasis added.)

The board shall make its determination within thirty (30) days after the final hearing on any of the above matters.

Section 1207 of the Code, as enacted in 1929, contained only the first and second paragraphs, under which the jurisdiction of the Board of Property was limited to cases arising out of the operation of the Land Office, i.e., where there were adverse claimants of title to land originally granted by the Commonwealth by warrants or patents. Bannard v. New York State Natural Gas Corp., 404 Pa. 269, 172 A.2d 306 (1961). *fn2 Subsequently in 1953, Section 1207 of the Code was amended adding the third and fourth paragraphs.

Krulac contends that the trial court has concurrent jurisdiction over his action under the proviso set forth in the ...


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