94 Pa. Commw. 355 | Pa. Commw. Ct. | 1986
Lead Opinion
Opinion by
.This is an appeal by the Commonwealth of Pennsylvania, Department of Transportation (DOT) from an order of the Court of Common Pleas of Fayette County (trial court) which granted both parties leave to file amended pre-trial statements and ordered the ease to proceed to trial. We quash the appeal for lack
DOT condemned real property owned by Donald E. Shartzer and Lillian A. ¡Shartzer ('Condemnee's) which was being used as a junkyard. The condemnation included the right to enter upon and remove ¡all of the junk located on the property, in order to create a neutral zone for beautification purposes and to erect ¡screens to shield the remaining property’s use from view of the highway. A Board of Viewers wias appointed, heard testimony, and filed a report containing findings of fact and an award. DOT filed an appeal from the Board of Viewers’ 'award challenging only that portion ¡of the ¡award relating to the value of the land. No appeal was taken by Oondemnees. After the filing ¡of pre-trial statements by both DOT and Oondemnees, the trial court held ia pre-trial conference and entered an opinion which stated that, at the de novo trial, either party may offer testimony concerning ¡the appropriateness of .all items ¡of damages awarded by the Board of Viewers. Having thus determined ¡the issues to be tried, the trial court ¡ordered that .the case proceed to trial. It is from this order that DOT appeals.
For the reasons which follow, we hold that this order is not a final order (and, therefore, this Court is without jurisdiction to consider .the merits of DOT’S appeal.
*358 All objections, other ¡than to the amount of the award, raised by the appeal shall be determined by the court .preliminarily. The court may confirm, modify, ¡change the report or refer it back to the same or ¡other viewers. A decree confirming, modifying or changing the report shall constitute a final order.
The .amount of damages shall be determined by the court unless a jury trial has been demanded.
At the trial of the case, the oondemnee shall be the plaintiff and ¡the condemnor shall be the defendant.
The objection to the report of the Boiard of Viewers raised by DOT before ¡the trial court wias to the amount of the award, specifically ¡as it related to the value of (the land. As such, it was not ¡a matter to be determined by the trial court preliminarily. Additionally, the trial court did not confirm, modify ¡or change the report of the Board of Viewers, thus the order is not a final ¡order as defined by ¡the cleiar ¡’and unambiguous statutory language.
In the case of Kellman Fund v. Department of Transportation, 24 Pa. Commonwealth Ct. 102, 354 A.2d 583 (1976) this Court undertook a.detailed analysis of what constitutes a final ¡order under .Section 517 and concluded that appeals which do not ¡specifically object to any legal determination contained in the Boiard ¡of Viewers ’ report, but which merely request a trial ¡because of ¡alleged inadequacies of an award, do not present any issues for the trial court’s preliminary disposition. Id. at 117, 354 A.2d at 594.
The Kellman Fund Court also stated that the pre-trial order entered in that case would have the same effect as any other pre-trial order
Because, in the case at bar, the legal questions addressed by the trial court in its pre-trial order pertain to the elements and evidence of damages to be presented at trial, and does not confirm, modify or change the Board of Viewers’ report, it is not a final order. The jurisdiction of this Clourt, relating to eminent domain cases, is limited to final orders of the courts of common pleas.
We must, therefore, quash DOT’s appeal.
Order
And Now, January 27,1986, the appeal by the ‘Commonwealth of Pennsylvania, Department of Transportation, from the order of the Court of Common Pleas of Fayette County, No. 2739 of 1979 G.D., dated October 3,1984, is quashed.
Although neither DOT nor Condemnees have raised the issue of this Court’s jurisdiction, the Court may raise this issue sua sponte. An appellate court cannot assume jurisdiction of an interlocutory order, even with the consent of the parties. Kratz v. Board of Commissioners of Upper Gwynedd Township, 88 Pa. Commonwealth Ct. 108, 488 A.2d 670 (1985).
Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. §1-517.
See Pa R.C.P. No. 212.
See 42 Pa. C. S. §762(a) (1) (ii), §762(a)(6).
Dissenting Opinion
Dissenting Opinion by
I respectfully dissent.
Condemnee’s property wias condemned pursuant to an Act of the legislature restricting the maintenance of junkyards along highways and authorizing the Secretary of the Department of Transportation (DOT) to eliminate such junkyards by condemnation and .remove such property thereon to carry out the provisions of the Act. Act of July 28, 1966, Special Sess., P.L. 91, as amended, 36 P.S. §2719.1.
The B'oard of Viewers made an award of $170,000 for the real estate, plus delay damage, for a total of $174,202.66; $250 for attorney’s fees; $250 for appraisal fees; $12,500 for tires; $33,750 for 450 cars.
D.OT appealed only the awiard for damages to the reial estate. The condemnee took no appeal.
The trial court held that despite apportionment, the award was a single award and that an .appeal created a de novo trial and thja,t either party may offer testimony concerning the appropriateness of all items of damage awarded by .the viewers.
.Since 'the only issue before the trial court was the value of the land, the Commonwealth contends that evidence of other damages would be irrelevant.
.The .condemnee contends that once an appeal is taken 'there is a de novo proceeding for all purposes and that any portion of the award may be challenged.
Section 515 of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. §1-515, provides that all awards of damages as to which no appeal is taken shall become final and .shall constitute a final judgment. Awards ■may be apportioned. Section 511 of the Code, 26 P.S. §1-511.
The so-called unit rule has no .application and is irrelevant to the issue involved here. The rule has nothing at all to do with items of damage not connected with the fair market value of the real estate. As to that element of damage, this was a final order. •
Section 705 of the Code, 26 P.S. §1-705, permits a qualified real estate expert to state all facts and data which he considered .in arriving at his opinion of the fair market value of .the reial estate ias just compensation. In so doing, the so-called unit rule permits the
"While the Code does state that iany or all facts and data which the expert considered in arriving at his fair market value opinion are admissible, such facts and data must be judicially relevant and competent. See Zamsky v. Pittsburgh Public Parking Authority, 378 Pa. 38, 105 A.2d 335 (1954).
In conclusion, the unit rule is not applicable tio this case. The only issue on -appeal to the trial court was the value of the neial estate. The other awards are irrelevant on that issne. The .awards are final as to those items.