Appeal No. 928 T.D. 1970 | Pa. Commw. Ct. | Oct 4, 1971
Opinion by
The City of Philadelphia in 1969, pursuant to its power of eminent domain, condemned a plot of land on the northwest corner of Sixteenth and Callowhill Streets in Philadelphia. The record title owner listed on the declaration of taking, filed on July 3, 1969, was the Beading Company. Written notice of the condemnation was given to the Beading Company and the owners of a possible reversionary interest which is not at issue here.
Prior to the filing of the declaration of taking, Beading Company entered into an agreement of sale for the land in question with McCullough Howard & Co., Inc., but no deed transfer had occurred. After the condemnation, McCullough Howard & Co., Inc., by its attorney, on August 13, 1969, entered an appearance on the record of this action, as equitable owner under the agreement of sale with the Beading Company.
On December 1, 1969, Beading Company and McCullough Howard & Co., Inc., by their attorneys of record, tendered possession of the land in question to the City of Philadelphia pursuant to the Eminent Domain Code. The condemnees, at the same time they
In this action, the Reading Company seeks to have this appeal quashed on the grounds that the trial court’s order of March 24, 1970 was not an appealable order. The Eminent Domain Code provides for a right of appeal only “from any final order or judgment of the court of common pleas.” (Act of June 22, 1964, P. L. 84, Art. V, §523, 26 P.S. 1-523 (1971)). The City contends that the order of the trial court, requiring it to file a declaration of estimated just compensation, is a final order. We do not agree that the order appealed from is a final order.
Section 407 (b) of the Eminent Domain Code (Act of June 22, 1964, P. L. 84, Art. Y, §407, 26 P.S. 1-407 (b) (1971)) provides: “If within sixty days from the filing of the declaration of taking the condemnor has not paid just compensation . . ., the condemnee may tender possession or right of entry in writing and the condemnor shall thereupon make payment of the just compensation due such condemnee as estimated by the condemnor. If the condemnor fails to make such payment the court, upon petition of the condemnee, may compel the condemnor to file a declaration of estimated just compensation or, if the condemnor fails or refuses
The trial court’s order of March 22, 1970, was merely an intermediate step in a statutory procedure passed by the Legislature to guarantee payment of compensation to a condemnee. In this case, since more than sixty days had passed since the taking occurred, the condemnees tendered possession in writing and requested compensation, according to the provisions of Section 407. When the City, as condemnor, failed to compensate the condemnees, they petitioned the court to compel the City to file a declaration of estimated just compensation, again in accordance with the provisions of Section 407. Thus, the condemnees were merely following the procedure set out in the Eminent Domain Code and had only reached an intermediate step when this appeal interrupted their proceedings. The provisions of the statute quoted above obviously contemplate several additional steps, such as a hearing and a judgment of the court, before the condemnor is compelled to pay anything to the condemnee. The order of the trial court ordering the City to file the declaration of estimated just compensation was therefore not a final order because it did not “terminate the litigation between parties to the suit by precluding a party from further action in that court.” Middleberg v. Middleberg, 427 Pa. 114, 233 A. 2d 889 (1967).
Because the order of the trial court was not a final, appealable order, the motion of the condemnee to quash this appeal brought by the condemnor, is granted.