Westmoreland v. Commonwealth

36 Pa. D. & C.2d 463, 1964 Pa. Dist. & Cnty. Dec. LEXIS 17
CourtPennsylvania Court of Common Pleas, Chester County
DecidedDecember 29, 1964
Docketno. 91
StatusPublished
Cited by1 cases

This text of 36 Pa. D. & C.2d 463 (Westmoreland v. Commonwealth) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Chester County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Westmoreland v. Commonwealth, 36 Pa. D. & C.2d 463, 1964 Pa. Dist. & Cnty. Dec. LEXIS 17 (Pa. Super. Ct. 1964).

Opinion

Kurtz, J.,

The chronology in this case is as follows:

March 14, 1963: Jury of view appointed by the court of quarter sessions on petition of Ella D. Westmoreland, one of the property owners whose land has been condemned and appropriated by the Commonwealth, to view the premises described by metes and bounds in the petition, and to award the damages to which the owners were entitled as a result of the condemnation. See 15 Road Damages 1963.

June 1, 1964: Report of the jury of view filed in the quarter sessions assessing the damages at $4,840, and making awards thereof to the owners and lien holders having an interest therein.

June 23, 1964: Appeal from the report of the jury of view filed in the quarter sessions by the Commonwealth’s attorney. Although the appeal recites that the report of the jury of view was confirmed nisi on June 1, 1964, no record of such confirmation can be found in the court’s minutes.

Eo die: Appeal certified to the court of common pleas by the clerk of the quarter sessions.

Eo die: Certification of appeal filed in the common pleas.

July 21, 1964: Stipulation of counsel filed in the common pleas defining the issues to be tried in that court as follows: “What was the difference between the fair market value of the condemnees’ entire property interest immediately before the condemnation [465]*465and as unaffected thereby and the fair market value of their property interest remaining immediately after such condemnation and as affected thereby?” and “To what compensation for delay in payment are the condemnees entitled?”

October 20, 1964: Property owners’ motion to strike the appeal filed asserting the following grounds:

“1. The said Appeal does not comply with Section 516 of the Eminent Domain Code of 1964, which provides that the Appeal shall set forth: ... (2) A brief description or identification of the property involved and the condemnee’s interest therein. The said Appeal does not contain a description or identification of the property involved or the condemnee’s interest therein.
“2. The appeal does not comply with Section 515 of the Eminent Domain Code, which provides that the Appeal shall be taken to the Court of Common Pleas. The appeal filed in this matter was to the Clerk of the Court of Quarter Sessions.
“3. The Appeal filed in this proceeding is defective on its face and should be stricken.”

November 9, 1964: Argument heard on the motion to strike, at which time the Commonwealth’s attorney filed a motion to amend the appeal to include therein a more precise description of the real estate involved, and to set forth the condemnees’ interest in the property.

Although the motion to amend was not filed until the motion to strike had been called for argument, we believe that proper procedure requires us to consider it first. If an amendment is permitted, the motion to strike can then be considered in the light of that amendment. The rule regarding the permitting of amendments has been recently stated in Schaffer v. Larzelere, 410 Pa. 402, 406 (1963) : [466]*466tion of the court below. In the absence of plain error, its action will not reversed: Trabue v. Walsh, 318 Pa. 391, 177 A. 815 (1935). However, the right to amend should be liberally granted at any stage of the proceedings unless there is an error of law or resulting prejudice to an adverse party: Arzinger v. Baughman, 348 Pa. 84, 34 A. 2d 64 (1943); Esso Standard Oil Co. v. Taylor, 399 Pa. 324, 159 A. 2d 692 (1960). The Pennsylvania Rules of Civil Procedure have embodied the modern philosophy of jurisprudence and court procedure and allow amendments with great liberality to the end that justice by all parties may be achieved: See, Pa. R. C. P. 1033; 20 U. Pitt. Law Rev. 553 (1958); 2 Anderson, Pa. Civ. Pract., p. 535; Cucinotti v. Ortmann, 399 Pa. 26, 159 A. 2d 216 (1960).

[465]*465“It is the general rule that the amendment of pleadings is a matter within the wise and judicial discre-

[466]*466“An amendment introducing a new cause of action will not be permitted after the Statute of Limitations has run in favor of a defendant: Spry v. F. U. M. F. Ins. Co. of Penna., 101 Pa. Superior Ct. 49 (1931); Wessling v. Latkanich, 144 Pa. Superior Ct. 317, 19 A. 2d 553 (1941); Coll v. Westinghouse E. & Mfg. Co., 230 Pa. 86, 79 A. 163 (1911); Arner v. Sokol, 373 Pa. 587, 96 A. 2d 854 (1953). This would constitute ‘resulting prejudice’ to the adverse party. However, if the proposed amendment does not change the cause of action but merely amplifies that which has already been averred, it should be allowed even though the Statute of Limitations has already run: Arner v. Sokol, supra; Coll v. Westinghouse E. & Mfg. Co., supra; Jackson v. Gunton, 218 Pa. 275, 67 A. 467 (1907); Byers v. Bacon, 250 Pa. 564, 95 A. 711 (1915).”

The Eminent Domain Code, the Act of June 22, 1964, P. L. 84, art. V, sec. 516, 26 PS§516, provides that an appeal shall set forth, inter alia: “(2) A brief description or identification of the property involved [467]*467and the condemnee’s interest therein.” It became effective immediately upon approval, i.e., June 22, 1964, Act of 1964, supra, §302. This appeal was filed the next day following the effective date of that section of the code. Counsel for the Commonwealth stated at argument that he was not aware of the code’s requirements at that time. In acting as he did, he followed prior practice of long standing in this court as it has been prescribed by the applicable acts of assembly and our own rules of court.1

We think that a proper exercise of our judicial discretion requires us to allow the amendment which the Commonwealth now seeks. Surely, the property owner condemnees cannot be prejudiced as a result since they are well aware of the description and identity of the property involved, having set it forth by metes and bounds in the petition for the appointment of viewers which they presented. They also know or ought to know what interest they possess in that property.

No new cause of action is here sought to be asserted, neither is there a question presented involving the statute of limitations. This amendment merely seeks to meet the requirements of a statute which became law on the day immediately prior to the day upon which the appeal was filed. In our view, we would be guilty of a manifest abuse of discretion if we refused to permit the amendment.

We must now consider whether the appeal as amended must be struck as having been filed in the wrong court. Section 515 of the code provides for appeals from the decision of viewers to the court of common pleas as distinguished from the court of [468]*468quarter sessions. Although this appeal was filed in the quarter sessions, it purports on its face to have been taken to the common pleas. We have already noted that appellant’s counsel followed established procedures and our rules of court in filing the appeal as he did. But even if the appeal was taken to the wrong court, the question has been answered adversely to the motion to strike in Romberger Appeal, 190 Pa. Superior Ct. 11,15 (1959) as follows:

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Bluebook (online)
36 Pa. D. & C.2d 463, 1964 Pa. Dist. & Cnty. Dec. LEXIS 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/westmoreland-v-commonwealth-pactcomplcheste-1964.