*1 Appellant. Werner v. Commonwealth, Appellant. Commonwealth v. Burns, Mus J.,C. Bell, Before October Argued O’Brien Cohen, Eagen, manno, Jones, JJ. Assistant R. with Specter, Attorney General,
George him Chief Remolla, and Walter E. Counsel, R. John Attorney Alessandroni, General, appellant. *2 McKay,
Donald R. with him Martin Er- E. Gusick, rol Joyce, Fullerton, Gusick, Madden, Acker McKay, appellees. for
Argued October Before Mus- J., C. Bell, Jones, Cohen, Eagen, O’Brien and manno, JJ.
James H. with Stewart, Jr., him McGinnes, J. Ross appellants. Nauman, Shissler Smith, for & Hall, Raymond Deputy Attorney Miller, with General, him Attorney Walter E. Alessandroni, General, appellee. Commonwealth,
Opinion by January Mr. J ustice Cohen, 1965: appeals Both by these cases involve from dismissals reports courts proceedings. boards of viewers Pur- suant to the statutes involved the in quarter Werner case were sessions court, 1, 1945, 1242, §§303, P.S. §§670-303, exceptions in 304 while the the Burns case were raised pleas, July of common right §1575. their In both as was P.S. §5, cases, excep parties taking under these same statutes, appeals to courts also took tions to the viewers’ novo. de of common heard Snyder 2d (1963). report was the Werner case special find- refusal make a based property ing con- or not certain fact whether damages. determining sidered the viewers ques- ground that the was dismissed applied unity doctrine use tion—whether question fact mixed one of law a—was raised at the trial of the and should be exception. bases there were three case *3 exceptions: (1) mere of a for avigation that the condemnation the statute
easement was unlawful because permit all than the take less does not condemnor to (2) property al- in the interest the owner’s land, though taking fee entire the the facts constituted (3) only the an easement was condemned damages, did not contain schedule viewers’ subjacent damage to the the to did, or, avigation The the easement was reflected. ground (1) that the statute dismissed the an easement the condemnation of countenanced (3) ground (2) disposed appeal. by be would in of the both cases The dismissals ap- interlocutory premature orders and therefore these quashed. appeals peals have In both cases must be viewers’1 to the common court from the taken been reports. will not liabilities condemnors appeals until these are concluded. Under determined the mere dismissal of circumstances such any a final to constitute order or, said cannot litigation parties. between the terminate to sense,
359
Steel Com-
This has been the rule since Pennsylvania
We
pany’s
Pa.
We do not decide what effect “Eminent the new Domain Code” of June 1964 (Special Session), No. 6, §§515, 516, 517, 26 P.S. §§1-515, 516, 517, may have upon question; this however, the statutes governing these cases do not make orders interlocutory question appealable. In the Werner the pertinent case, statute, §§303, an §§670-303, mentions Court this only respect to the judgment of the court of common pleas. to the According stat- ute applicable case, had “from of the court of *4 upon exceptions either or upon the ver- in framed on . . . appeal.” dict the issue Act of July L. 71 P.S. P. 976, §6, §1576. But the statute procedure what the does not shall say be when both exception and to from the viewers’ report the appeal taken1 whether have been from the com- Act, §1575, the 71 P.S. of5 does Section direct the common exceptions pleas determine court to hear before the but mon must exceptions court’s the view- its heard before ers’ has rendered.2 report been quashed.
Appeals Dissenting Opinion Bell: Chief Mr. Order the dissent from the Court’s holding in the the Court Common Pleas Burns and Quarter in the Court Sessions Werner —each a reports which dismissed filed proceedings Board of in condemnation —were present the interlocutory unappealable. While law prescribing a distinction between (a) appeals in seems proceedings (b) upon proper procedure this effect this has no the to Court. appellants that, pursuant Burns the In the case contend to they quoted text, appealing- “confirma- statute the from a report tion” the But the makes clear of the viewers. statute timely appeal prevents re- a confirmation of the the port, July Appellants 976, §4, the §1574. question a also contend their raise case law, report required by the standard whether the viewers’ meets question they have now are entitled to this decided notwith- they appeal. standing the fact taken a de the have novo question go place to first the does not thrust question adequacy legal but to the factual subjacent avigation damages easement. say Second, included the “schedule” must be statute does July 15, 1919, §4. filed in court. hearing at a exhibited set viewers “schedule” they evidence after their decision but made receive Apparently appellants they waived court. before event, perceive why hearing. we fail to dismissal reviewed at this time. It raise does not should of this favorably appellant decided would question legality proceedings fundamental be- throw doubt concluded, Therefore, until the de novo is viewers. fore premature. question would be decision our
361 applicable to me to be statute ridiculous,* specifically very provides, recent Burns case and two each of Order in cases this Court hold, appealable. these cases was a final and Cavalier Angle Appeal, 547; 183 A. 2d Common 408 Pa. v. 2d wealth, Commonwealth Burns July 15, The Burns claim arises under the Act of seq., §1571 et amended, governs De- condemnations instituted partment pro- Supplies. Property That statute appointment vides Section for the of viewers the Court of Common in Section Pleas, filing of the viewers and/or Common therefrom to the Court Pleas. provides: 6 of Section Commonwealth Act “The any party right may other interested have the Supreme any judgment Court from %iponexceptions the upon either appeal.” the verdict in the issue framed on such meaning provision statutory specifically of granting right Supreme to the any judgment Court of Common ex- Pleas ceptions, crystal ig- possibly is clear as and cannot changed by nored or this Court. (as see)
Moreover we shall hereinafter recent cases this Court likewise, without doubt, allow an to this Court from the dismissal of of the Board of lower Court. supra, Angle Cavalier 408 Pa., Com supra, clearly monwealth, unquestionably Pa., interpretation no final is now While made of the recent Emi- Act of June P. nent Domain L. appear it would changed. has been distinction this ridiculous (1)
hold be filed (a) these the Board of Viewers, procedure only questions solely of relate to and raise questions (b) of fact and law, app only by damages may and on be raised amount eal.* Commonwealth
Werner v. The Werner as claim Cavalier claim arose did the brought proceedings Angle out of condemnation seq., §101 et under the ofAct Highway known the State Law. supra In involved Cavalier 408 Pa., — which Court
an from a to this Court Quarter had dismissed Sessions which Court a of View—this of Board through unanimously (speaking af Cohen) firmed of the Court below. Angle supra, Pa., appealed from an Order
Commonwealth Quarter had Common- which dismissed the Sessions findings of Board of Viewers a wealth’s proceedings. Order of lower in condemnation Court was affirmed. anything
It obvious as can be that is as Judgment Court in Cavalier and Angle had dismissed which ap- the Board was a final pealable Order. Exceptions Appeal Between
Differences recognized ex- a well distinction There is between ceptions and an a viewers’ from nearly every overlooked often It is too brought many under a case is statute which in domain eminent every other statute. respects differs report; they are viewers’ separate neither embraces the other; questions.
and distinct and raise different Township Lower Chichester 200) (pages said : the Court right in “Our conclusion is that the common was holding complained that the could only competent exceptions, and that it passed upon jury have them at the trial from the viewers. excepted
“. . . Matters which to and hearing exceptions may the court questions conclude raise proper jury’s consideration,
of fact exceptions, would not be determined on but would *7 relegated by the court to the triers but, fact, if municipality, raise owner, wishes to any question report, as to the than other any, broad one should assessment, which made, must be done appeal.* and not we intent view is the This, it, of the act.
“The [court the . . . of] is affirmed.”
In Lakewood Memorial Gardens
381 Pa. 112 A. 2d
were filed to
a decision
Order of the Board of Viewers. These
dismissed
the Court of Common
af
which
Pleas,
firmed
the Order
Board
Viewers. This
affirmed the
Common
Pleas and said
51)
(page
Exceptions
. .
reports,
: “.
to viewers’
unlike
properly
procedural
are
therefrom,
limited questions
inquiry:
basic to
law
See
Municipal Authority Delp,
v.
Chester
371 Pa. Twp.
92 A. 2d
Lower Chichester
169;
“The order
affirmed. . . .”
throughout, ours.
Italics
Com
Steel
rely
Pennsylvania
majority
Pa.
Atl.
and Sullivan
pany’s Appeal,
which
Pa.
107 A. 2d
Philadelphia,
Water Co. v.
Sinking
Gring,
be added
Spring
could
was
Pa.
Kusche, Company, Inc.
Plastics