437 Pa. 298 | Pa. | 1970
Opinion by
The Commonwealth of Pennsylvania, acting through the Department of Highways, condemned certain parcels of land of the Langhorne Spring Water Company [Water Company], Middletown Township, Bucks County, as of May 14, 1963, revised July 13, 1964. The Court of Common Pleas of Bucks County, on January 30, 1967, appointed a board of view, which, after hearing, made an award to the Water Company in the amount of $81,668.00, the report of the board of view being Hied on March 5, 1968. On March 28, 1968— twenty-three days after the filing of the award of the board of view—the Commonwealth, acting through the Department of Highways, filed an appeal in the Court of Common Pleas of Bucks County.
By a letter dated April 4, 1968—seven days after filing, the appeal—the Commonwealth gave notice to the Water Company’s lawyer of the appeal.
Initially, it must be noted that the appeal of the Commonwealth from the board of view to the Court of Common Pleas was filed in strict accordance with Section 515 of the Eminent Domain Code, supra, 26 P.S. §1-515. See: Miller Estate v. Department of Highways, 424 Pa. 477, 481-82, 227 A. 2d 679 (1967).
The court below, by its order, dismissed the Water Company’s preliminary objections, holding that the provisions of Section 516(b) of the Eminent Domain Code (26 P.S. §1-516(b)) were directory as to time and not mandatory.
Tbe Water Company’s first contention is that a copy of the Commowealth’s appeal should have been served within five days after the appeal was filed and that Section 516(b) of the Eminent Domain Code, supra, is mandatory and not directory as to the time of serving the copy of the appeal.
Factually, the record reveals that the Commonwealth’s counsel sent a letter, giving notice of the filing of the appeal,
Section 516(b) does not require that a copy of the appeal be filed or that an affidavit of service of such copy be filed within the thirty-day period. See: Miller, supra, 424 Pa. at 482. Our examination of Section 516(b) indicates that it was the legislative intent that a copy of the appeal be served within a reasonable time after filing of the appeal and that the five-day provision is directory and not mandatory in nature.
The Water Company’s second contention is that the failure to file the affidavit of proof of service for a period of approximately ten months subsequent to the filing of the appeal justifies quashing the appeal. We disagree. While the delay in filing the affidavit of proof of service for such an unreasonable time cannot be condoned, we believe that, under the instant circumstances, the court below was proper in permitting the Commonwealth to file such affidavit nunc pro tunc. In Miller, we said: “In the absence of a time requirement for the filing of proof oí service of the copy of the appeal, such filing must be accomplished within a reasonable time subsequent to the filing of the appeal [citing authorities].” (424 Pa. at 482) “[T]he purpose, of the service, as well as the proof of service, is to insure that the opposing party is advised of the appeal, and whether a jury trial had been demanded. §516 (a) (5) gives fifteen days to the opposing party after being served with the notice to demand a jury trial if it has been waived.” Snitzer, Pennsylvania Eminent Domain, pp. 228-229.
In the case at bar, it is clear beyond question that, service of a copy .of the appeal was made within a rea-;
Order affirmed.
This appeal was timely filed within the thirty-day period prescribed by the Eminent Domain Code (Act of June 22, 1964 (Spec. Sess.), P. L. 84, Art. V, §515, 26 P.S. §1-515).
The letter was postmarked April 5, arrived at West Chester April 6, and was delivered to the office of the Water Company’s attorney on April 6, at the earliest, or Monday April 8, at the
These preliminary objections and motion to quash were filed over two and one-half months after the appeal was filed.
Actually, no proof of service of the copy of the appeal had been filed up until the argument in the court below, to wit, January 20, 1969, at which time the court below gave leave to the Commonwealth to file its affidavit of service mmo pro tunc, which it did on January 22, 1969.
The same court had held likewise in Metropolitan Edison v. Wurm, 17 Bucks Co. L. Rep. 534 (1868). A contrary position was taken in Barr Condemnation Appeal, 60 Lanc. L. Rev. 155 (1966).
Tbe record indicates that the report of the board of view had been filed February 13, 1968, whereas it was actuaUy filed March 5, 1968. Moreover, the board of view, in its notice to the parties, stated that its report would be filed on February 27, 1968, but "it was not filed until March 5, 1968.
In Miller, supra, 424 Pa. at 482, we said: “The service of- a copy of the appeal in the case at bar was within the five day period mandated by §516 (b). . . .” (Emphasis added) In Miller,