City of Pittsburgh v. Haffner

471 A.2d 116, 80 Pa. Commw. 53, 1984 Pa. Commw. LEXIS 1161
CourtCommonwealth Court of Pennsylvania
DecidedJanuary 30, 1984
DocketAppeal, No. 1750 C.D. 1982
StatusPublished
Cited by12 cases

This text of 471 A.2d 116 (City of Pittsburgh v. Haffner) 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
City of Pittsburgh v. Haffner, 471 A.2d 116, 80 Pa. Commw. 53, 1984 Pa. Commw. LEXIS 1161 (Pa. Ct. App. 1984).

Opinion

Opinion by

Judge Barry,

This is an appeal from ¡an ¡order of the Court of Common Pleas of Allegheny County, 'dismissing preliminary objections filed iby appellant, the City of Pittsburgh (City) to la petition for ¡appointment of viewers (Petition). Appellees, Clara Haffner, Betty Rosenfield, Pittsburgh National Bank, Trustee for Betty Rosenfield, William Perer ¡and Howard Perer filed this Petition on November 22, 1978, seeking damages because of an ¡alleged ¡de facto taking by the ¡City.

The trial Court on November 22,1978, appointed a Board of View (Board) under Section ¡502 of the Eminent Domain Code (Code).1 On January 18,1979, the City was served and received a copy of the Petition. On that same day, an affidavit of ¡service and 'acceptance of service by the City were filed.

On July 11, 1979, approximately 174 days after the affidavit of ¡service and the acceptance of service by the City were filed, the City filed preliminary objections. Nine ¡days later the 'appellees filed ,a petition to quash the City’s preliminary objections.

On March 11,1982, the Court ordered a hearing ¡on appellees ’ petition to quash. Not long thereafter, the Deputy Director of the City’s Department of Parks [55]*55and Recreation, filed an affidavit indicating .that a non-public body was responsible for the conduct attributed to the City in the appellees ’ Petition.

On July 15, 1982, the Court dismissed the appellants’ preliminary ¡objections as having been untimely filed under the provisions of ¡Section 504 of the Code. This appeal is from that order.2

The City ¡argues that it did not receive due notice of the appointment of the Board as required by the Code. ¡Section 504 ¡of this Code provides:

Upon the filing of a petition for ¡appointment of viewers, the Court . . . ¡shall promptly appoint thr ee viewers, who shall view ¡the premises, hold hearings, and file a report. . . . The profhonotary shall promptly notify the viewers of their appointment unless a local rule provides another method of notification.
The viewers shall promptly .give written notice iby registered or certified mail, return receipt requested, of their appointment to ¡all persons named as condemnors or oondemnees in the petition for the appointment ¡of viewers and of the place and the time of the view, which shall not be less than twenty days from the date of said notice.
Any objection to the ¡appointment ¡of viewers not theretofore waived may be raised [by ¡preliminary ¡objections filed within twenty days after receipt of the notice of the appointment of viewers. . . .

[56]*56If the City received due notice under the statute, then the ¡order dismissing the City’s preliminary .objections must be affirmed. If the ¡City did not receive due notice, the matter must be remanded for consideration of those preliminary ¡objections.

The appellees advance a number .of arguments supporting their contention that the ¡City received proper notice. They maintain that the trial court correctly dismissed the appellants’ preliminary objections as having been untimely filed under Section 504 of the Code. According to the appellees, Section 504 of the Code should be .liberally construed, so that .actual notice satisfies the requirements of the statute. The appellees contend .that the ¡receipt of a copy of the Petition by the City on January 18, 1979, ¡served by the appellees, put the City on ¡actual notice, which required a more timely filing ¡of the preliminary ¡objections. The appellees cite the cases of Janeski v. Borough of South Williamsport, 58 Pa. Commonwealth Ct. 369, 429 A.2d 768 (1981); Department of Transportation v. Harrisburg Coca-Cola Bottling Co., 51 Pa. Commonwealth Ct. 425, 414 A.2d 1097 (1980), for the proposition that preliminary ¡objections to ¡the Petition must not be filed beyond twenty days following notification of the appointment of the viewers.

In our view, a petition for ¡appointment of viewers is a pleading and no obligation to respond to it arises until proper statutory service has been effected. According to the rule of construction in ¡the ¡Statutory Construction Act of 1972,1 P¡a. C. S. §1928 (b), “ [a] 11 provisions of the statute of the classes hereafter enumerated shall be strictly construed:... (4) Provisions oonfering the power of ¡eminent domain.” We believe that this provision ¡of the ¡statute contemplates all provisions of ¡the Code including the notice provision under Section 504. Therefore, in our opinion, the notice [57]*57provision under Section 504 of the Code must be strictly observed.

Under Section 504 of the Code, the viewers “shall”, without delay, send written notice by registered or certified mail of their appointment to all condemnors and icondemnees. This section, moreover, requires that any objection to the .appointment of viewers may be raised by objections filed no more than twenty days f ollowing the receipt ¡of notice of the appointment of viewers. The provisions in Section 504 regarding notice are imperative, since the word “shall” in a statute is normally regarded as mandatory. In the Matter of Columbia Borough, 24 Pa. Commonwealth Ct. 190, 354 A.2d 277 (1976).

Further evidence supports the Potion that the Legislature intended only ¡one exclusive means of notice of appointment of a Board under Section 504 of the Code. ¡Section 405(b) of the Code as well as .Section 505 articulate a more flexible means of serving notice than does Section 504. Both Section 405(b) which provides notice to a condemnee, and Section 505 which provides service of notice of view and hearing, permit alternative methods of notice. Section 504, however, contains no option, thereby leaving 'this Court to 'infer that the manner of notice set forth in Section 504 is exclusive. Appellees argue that according to Avery v. Commonwealth, 2 Pa. Commonwealth Ct. 105, 276 A.2d 843 (1971), they have substantially complied with the procedural requirements of notice and that the ¡appellants were not prejudiced by ¡any irregularities in the procedural aspects of the condemnation. A close reading, however, of Avery indicates that it did not involve failure to notify but 'alleged inadequacies in the notice, which are not relevant here.

Appellees further maintain that in Buerkle Appeal, 49 Pa. Commonwealth Ct. 585, 412 A.2d 658 (1958), the condemnee received the notice of hearing [58]*58by ordinary mail, which did not comply with the statutory requirement of Section 505, but did satisfy requirements of actual notice considering the circumstances of that case. Again, 'this case can be distinguished from the one at bar ¡since our case1 deals with Section 504 .and not 'Section 505 of the Code. Finally, the Court found ¡adequate actual notice in the Buerlde Appeal peculiar only to the circumstances of 'that case. Appellees also advance the argument that the case of Appeal of Perry, 75 Pa.

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Bluebook (online)
471 A.2d 116, 80 Pa. Commw. 53, 1984 Pa. Commw. LEXIS 1161, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-pittsburgh-v-haffner-pacommwct-1984.