In re Condemnation by the Commonwealth, Department of Transportation
In re Condemnation by the Commonwealth, Department of Transportation
Opinion of the Court
Opinion by
The Pennsylvania Department of Transportation (DOT) appeals a Westmoreland County Common Pleas Court order denying its preliminary objections to a petition for the appointment of viewers in a condemnation case. We affirm.
A portion of Joseph Simons land was condemned under the Pennsylvania Eminent Domain Code
Section 524 of the Eminent Domain Code
Limitation Period. — A petition for the appointment of viewers for the assessment of damages for a condemnation or compensable injury may not be filed after the expiration of six years from the date on which the condemnor made payment in accordance with section 407(a) or (b) of [the Eminent Domain Code] where the property or any part thereof has been taken, or from the date of injury where the property has been injured but no part thereof has been taken. If such petition is not filed before the expiration of such period, such payment shall be*582 considered to be in full satisfaction of the damages. (Emphasis added.)
Section 524, however, was repealed in 1978, and was replaced by Section 5527(4) of the Judicial Code
The following actions and proceedings must be commenced within six years:
(4) A Proceeding in inverse condemnation, if property has been injured but no part thereof has been taken, or if the condemnor has made payment in accordance with section 407(a) or (b) (relating to possession and payment of compensation) of ... the “Eminent Domain Code.” (Emphasis added.)
DOT, arguing that Section 5527(4) of the Judicial Code is limited to proceedings in inverse condemnation, contends that the correct period of limitations in actual condemnation proceedings is found in Section 5527(6)
(6) Any civil action or proceeding which is neither subject to another limitation specified in this subchapter nor excluded from the application of a period of limitation by section 5531 (relating to no limitation).
Although subsections (4) and (6) of Section 5527 both provide for six-year limitation periods, DOT argues that, under subsection (6), the period begins to run from the time of the taking, but not from the payment of estimated just compensation. Thus, DOT continues, under the Judicial Code the applicable statute of limitations has been reduced.
Effect of Judicial Code on Periods of Limitation
(a) Any civil action or proceeding:
(1) the time heretofore limited by statute for the commencement of which is reduced by any provision of [the Judicial Code] ... may be commenced within one year after the effective date of this act [i.e., June 27, 1978], or within the period heretofore limited by statute, whichever is less.... (Emphasis added.)
Applying its thesis to the facts, DOT argues that Simon had only until June 27, 1979 (one year after the effective date of the Judicial Code) to petition for viewers since this is less time than allowed under the repealed Section 524, which would have given Simon until March 11, 1983, to file a petition. Since the argument concludes, Simon did not petition for viewers until February 1, 1982, his action is barred.
We reject DOT’S argument. Section 5527(4) applies to inverse condemnations as well as actual takings. Subsection (4), by the language “if the condemnor has made payment in accordance with section 407(a) or (b) ... of ... the ‘Eminent Domain Code,’ ” specifically refers to the payment of estimated just compensation in relation to possession of the property by the condemnor. Although not couched in precisely the same terminology as was the repealed Section 524, Section 5527(4) of the Judicial Code was intended to, and did,
Affirmed.
Order
The Westmoreland County Common Pleas Court order, No. 762 of 1982, dated April 23, 1982, is hereby affirmed.
Act of June 22, 1964, Special Sess. P.L. 84, as amended, 26 P.S. §1-101.
26 P.S. §1-524, repealed by Section 2(a) of the Act of April 28, 1978, P.L. 202. A similar provision now appears in Section 5527(4) of the Judicial Code, 42 Pa. C. S. §5527(4).
42 Pa. C. S. §5527(4).
42 Pa. C. S. §5527(6).
DOT contends that, under the repealed Section 524, a period in excess of six years from the date of taking was available in which
Reference
- Full Case Name
- In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, of Right of Way for Legislative Route 56677-000 etc. Commonwealth of Pennsylvania, Department of Transportation
- Cited By
- 1 case
- Status
- Published