A Condemnation Proceeding in Rem by the Redevelopment Authority of City of Philadelphia

632 A.2d 1061, 159 Pa. Commw. 234, 1993 Pa. Commw. LEXIS 648
CourtCommonwealth Court of Pennsylvania
DecidedOctober 21, 1993
DocketNo. 1900 C.D. 1992
StatusPublished
Cited by4 cases

This text of 632 A.2d 1061 (A Condemnation Proceeding in Rem by the Redevelopment Authority of City of Philadelphia) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
A Condemnation Proceeding in Rem by the Redevelopment Authority of City of Philadelphia, 632 A.2d 1061, 159 Pa. Commw. 234, 1993 Pa. Commw. LEXIS 648 (Pa. Ct. App. 1993).

Opinion

SMITH, Judge.

Samuel Linefsky, Samuel Alanoff, Selma Linefsky, and Elaine Katchman (Condemnees) appeal from the August 13, 1992 order of the Court of Common Pleas of Philadelphia County granting a motion to quash filed by the Redevelopment Authority of the City of Philadelphia (Authority), and denying Condemnees’ prehminary objections to the motion to quash. This Court must determine whether an appeal to a trial court from an award of a board of viewers is timely when it has been filed within thirty days of the “entry of the award” on the docket, or whether that appeal must be made within thirty days of the “filing” of the viewers’ award. For the following reasons, the trial court’s order is reversed.

In May 1988, the Authority filed a declaration of taking condemning property owned by Condemnees. Upon consideration of a petition filed by Condemnees, the trial court convened a board of viewers (viewers), which held a hearing on June 15, 1989. On June 29, 1989, the viewers mailed to the parties a copy of their report and award and informed them that the report would be filed on July 18, 1989. Although the viewers’ report was filed on that date, it was not entered on the docket until August 1, 1989.

On August 30,1989, Condemnees appealed the viewers’ award. The Authority moved to quash the appeal on the ground that it was not timely filed and Condemnees responded with preliminary objections. On December 7, 1989, the trial court dismissed the Authority’s motion to quash as Condemnees’ appeal was filed within thirty days of entry of the viewers’ report. On December 12, 1989, the trial court vacated its December 7 order and remanded the case to motion court for completion of the pleadings. On August 13, 1992, the trial court granted the Authority’s motion to quash the appeal and denied Condemnees’ preliminary objections. Condemnees appealed to this Court.1

[237]*237Condemnees argue that the trial court erred in relying on Sections 513 and 515 of the Eminent Domain Code2 as controlling the timeliness of appeals to the trial court from the viewers’ report. Section 513 provides in pertinent part:

Ten days before the filing of their report, the viewers shall mail a copy thereof to all parties or their attorneys of record, with notice of the date of the intended filing and that the report shall become final unless an appeal therefrom is filed within thirty days from the date the report is filed. Prior to the filing of their report they may correct any errors therein and give notice thereof to the persons affected. [Emphasis added.]

Section 515 provides that any award of damages as to which no appeal is taken “shall become final as of course and shall constitute a final judgment.” Relying upon these sections, the trial court determined that Condemnees’ appeal was untimely because it was filed more than thirty days from the date the viewers’ report was filed.

Condemnees assert, however, that Section 513 language regarding the appropriate appeal period was expressly repealed by Section 2(a)[1376] of the Judiciary Act Repealer Act (JARA), Act of April 28, 1978, P.L. 202, 42 P.S. § 20002(a)[1376], and replaced by Section 5571(b) of the Judicial Code, 42 Pa.C.S. § 5571(b), which provides in part:

[A]n appeal from a tribunal or other government unit to a court or from a court to an appellate court must be commenced within 30 days after the entry of the order from which the appeal is taken, in the ease of an interlocutory or final order. [Emphasis added.]

JARA and the Judicial Code represent “the culmination of a ten year effort to achieve the first complete judicial codification in Pennsylvania’s history.” Appeal of Chartiers Valley School Dist., 501 Pa. 620, 624, 462 A.2d 673, 675 (1983). The Judicial Code took effect in 1978 concurrent with JARA, the primary purpose of which was to repeal those statutes which [238]*238had been supplanted by the Code. Section 2(a) of JARA expressly repealed all or part of more than 1500 statutes, comprising approximately 6000 sections of Purdon’s Pennsylvania Statutes' enacted between 1700 and 1977.3 Id. In addition to this express repealer, Section 2(g) of JARA,. 42 P.S. § 20002(g), provides in part that “all other acts and parts of acts are hereby repealed insofar as they are in any manner inconsistent with this act or the act to which it is a supplement.”

In Chartiers, the Supreme Court stated that the obvious intent of the legislature in enacting Section 5571 of the Judicial Code was to make uniform the appeal period applicable to cases heard by Pennsylvania courts. The court noted that under Section 1971 of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1971, Section 5571 accomplished the implied repeal of the appeal period provisions relied upon by the appellants, “and the fact that these sections were not specifically repealed is of no consequence.” Id., 501 Pa. at 625, 462 A.2d at 676. Furthermore, in Foraker Appeal, 94 Pa.Commonwealth Ct. 322, 503 A.2d 1024 (1986), this Court held that inconsistency between Section 5571 and statutory provisions regarding appeals from a borough’s civil service commission decision mandates the repeal of the inconsistent portion of those provisions. Therefore, Section 5571(b) of the Judicial Code controls, and the trial court sub judice erred in determining that the appeal time contained in Sections 513 and 515 of the Eminent Domain Code govern Condemnees’ appeal from the viewers’ award as opposed to Section 5571(b).

In order to be timely Condemnees must have filed their appeal from the viewers’ award within thirty days after the entry of the award. Contrary to the Authority’s assertions4, [239]*239courts have consistently interpreted Section 5571(b) as requiring that the thirty day appeal period begins not on the date the order is signed or the date it is tiled, but rather on the date the order is entered on the docket. In Kemmerer Appeal, 46 Pa.Commonwealth Ct. 455, 405 A.2d 1108 (1979), this Court noted that Pa.R.A.P. 903(a), promulgated under the authority of Section 5571(a), requires that the appeal time runs from the date the order is entered of record, which in that case occurred seven days after the filing of the order appealed from. More recently, this Court held that in the case of a February 4, 1991 order granting a motion for summary judgment which was not entered on the docket until March 22, 1991, the appeal period began to run on the latter date. Di Vito v. City of Philadelphia, 144 Pa.Commonwealth Ct. 132, 601 A.2d 397 (1991), appeal denied sub nom. Di Vito v. Goode, 533 Pa. 613, 618 A.2d 403 (1992); see also Speight v. Burens, 371 Pa.Superior Ct. 478, 538 A.2d 542 (1988) (where a June 4, 1987 order received by all parties shortly after it was issued was not docketed “for some unknown reason” until July 2, 1987, the appeal period began to run on the date of entry on the docket).

The Authority argues that none of the cases cited by Condemnees5

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632 A.2d 1061, 159 Pa. Commw. 234, 1993 Pa. Commw. LEXIS 648, Counsel Stack Legal Research, https://law.counselstack.com/opinion/a-condemnation-proceeding-in-rem-by-the-redevelopment-authority-of-city-of-pacommwct-1993.