Summary
In Little, this Court relied upon Hafetz v. Redevelopment Auth. of Wilkes-Barre, 19 Pa. Commw. 202, 339 A.2d 644 (1975), in determining that a party must appeal from a board of viewers' award to the trial court within thirty days from the date of filing of the report.
Summary of this case from Claim of LinefskyOpinion
Argued April 9, 1980
July 25, 1980.
Eminent domain — Delay damages — Eminent Domain Code, Act 1964, June 22, P.L. 84 — Timeliness of appeal — Failure to appeal.
1. A final order of a court of common pleas awarding damages under the Eminent Domain Code, Act 1964, June 22, P.L. 84, is appealable to the Commonwealth Court of Pennsylvania, and a court of common pleas has no jurisdiction to entertain a motion to compel payment of delay damages when no provision for such damages was made in the final order, when no appeal was timely filed from such order by the complaining party and when the motion to compel payment was filed after the expiration of the appeal period. [258]
2. A condemnor has no duty to appeal a condemnation award to require the court to specify a date from which delayed compensation should be computed to preserve for the condemnee a claim for delay damages which were not awarded by the court. [258]
3. A condemnee who fails to appeal a damage award of a court of common pleas waives his right to object to the award, and the failure to file a timely appeal deprives the court of jurisdiction. [258]
Judge WILLIAMS, JR. dissented.
Argued April 9, 1980, before President Judge CRUMLISH, JR. and Judges CRAIG and WILLIAMS, JR., sitting as a panel of three.
Appeal, No. 2891 C.D. 1978, from the Order of the Court of Common Pleas of Philadelphia County in case of Kenton A. Little v. Redevelopment Authority of the City of Philadelphia, No. 2195 March Term, 1969.
Condemnation proceeding in the Court of Common Pleas of Philadelphia County. Viewers appointed. Award filed. Condemnee appealed. Trial held. Damages awarded. Condemnor appealed to the Commonwealth Court of Pennsylvania. Appeal withdrawn. Condemnee filed motion to compel payment of delay damages. Payment ordered. KALISH, J. Condemnor appealed to the Commonwealth Court of Pennsylvania. Held: Reversed.
Lawrence S. Rosenwald, Rosenwald Pollack, for appellant.
Leon W. Tucker, with him Austin Norris, for appellee.
The Philadelphia Common Pleas Court ordered the Redevelopment Authority of Philadelphia (Authority/Condemnor) to pay delay damages to Kenton A. Little for the confiscation of his hotel liquor license under the Eminent Domain Code. The Authority appeals.
Section 101 of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P. S. § 1-101 et seq.
We reverse.
On March 10, 1969, the Redevelopment Authority of Philadelphia condemned the hotel, bar and restaurant of Kenton A. Little (Condemnee) located at 818-822 Columbia Avenue, Philadelphia, Pennsylvania. Damages were assessed by the Board of View (Board) at $60,000. Little appealed the award, contending that the Board had improperly failed to consider the value of his hotel liquor license as an element of damages.
On June 22, 1977, the Common Pleas Court awarded $25,000 for the liquor license claim. The court made no mention of delay damages and no finding as to the date from which delay damages or interest should accrue as required by Section 518 of the Eminent Domain Code. Little did not appeal.
Common Pleas Court of Philadelphia after a de novo hearing and sitting without a jury.
Section 518 of the Eminent Domain Code, 26 P. S. § 1-518.
The Authority filed timely exceptions to the award which were dismissed September 26, 1977, and a subsequent appeal to this Court, which was withdrawn December 27, 1977.
The exceptions filed by the Redevelopment Authority of Philadelphia did not relate to delay damages.
In October, 1978, almost one year after the court's award, Little filed a motion to compel the Authority to pay delay damages. The Authority admitted delay damages were due on machinery, equipment and real estate, but refused to pay delayed compensation for the liquor license.
By order and opinion dated December 15, 1978, the Authority was directed to make payment for delay on the liquor license.
The Authority has appealed the December 15, 1978 opinion to this Court.
The controlling question is the jurisdiction of the Common Pleas Court to entertain and grant a motion to compel payment of delay damages where there is no provision for such damages in the original court award and the award is not challenged by exception or appeal until more than one year after the judgment is entered.
Section 517 of the Eminent Domain Code provides that on appeal from the Board of View, the Common Pleas Court (when sitting without a jury) shall determine the amount of damages. Any decree confirming, modifying, or changing the report of the Board shall constitute a final order. Final orders are appealable to this Court pursuant to 42 Pa. C. S. § 762 provided that notice of appeal is filed within 30 days after the entry of the order from which the appeal is taken. Pa. R.A.P. 903.
Section 517 of the Eminent Domain Code, 26 P. S. § 1-517.
Section 762 of the Judicial Code, 42 Pa. C. S. § 762.
In the instant case, the final order granting damages was entered June 22, 1977, yet Little did not appeal or in anywise raise the issue of delay damages until October, 1978. The period fixed by statute may not be extended by the Court, and Little's failure to file an appeal within the 30 days provided by law deprived the Court of jurisdiction. Hafetz v. Redevelopment Authority of the City of Wilkes-Barre, 19 Pa. Commw. 202, 339 A.2d 644 (1974).
Little argues that his entitlement to damages for delay is a matter of right under Section 611 of the Code. Therefore, the Authority had the duty to appeal the lower court's failure to specify the date from which delayed compensation should be computed and its refusal to do so cannot affect a condemnee's right to delay compensation.
Section 611 of the Eminent Domain Code, 26 P. S. § 1-611.
A similar situation arose in Hineline v. General State Authority, 15 Pa. Commw. 44, 324 A.2d 817 (1974), where the Board of View failed to award delay damages or determine the date from which they accrued as mandated by Section 515 of the Code. The condemnee filed an action in mandamus two and one-half years after the Board's report, seeking to compel the payment of delay damages from the filing of the declaration of taking. This court held that the condemnee as a party aggrieved by the decision of the Board had an equal opportunity and duty to appeal if it was not satisfied with the Board of View's determination and waived its right to object when it failed to do so within the statutorily prescribed time.
Section 515 of the Eminent Domain Code, 26 P. S. § 1-515.
In Hafetz v. Redevelopment Authority of the City of Wilkes-Barre, supra at 205, 339 A.2d at 646, this Court quashed as untimely a subsequent award of special damages for relocation and business removal expenses by the Board of View when the condemnee failed to raise these claims, by appeal or exceptions, filed within 30 days of the original award:
The prerogative of an aggrieved party to appeal to the court of common pleas within thirty days from the date of the filing of the report is established by statute. We cannot extend the period fixed by statute for appeal. The timeliness of an appeal and compliance with statutory provisions go to the jurisdiction of a court to hear the appeal. . . . A failure to timely file an appeal deprives a court of jurisdiction. . . .
Where an act of assembly fixes the time within which an appeal may be taken, the time may not be extended as a matter of indulgence.
Applying these holdings to the case at hand, we accordingly
ORDER
AND NOW, July 25, 1980, the order of the Common Pleas Court of Philadelphia granting delay damages to Kenton A. Little for his hotel liquor license is reversed.
Judge WILLIAMS, JR., dissents.