Opinion
October 3, 1930.
November 20, 1930.
Practice C.P. — Rule for vacation of appointment of viewers — Final order — Amendment made two years thereafter — Appeal.
On a rule for the vacation of the appointment of viewers, the defendant alleged that the court below had no jurisdiction and that there was no authority for the appointment. The rule was "made absolute, without prejudice." Approximately two years thereafter, the court filed an amended order in which the rule was "made absolute and the proceedings dismissed, without prejudice." From the latter order, the petitioner appealed.
Held: (1) That the order first made was a final order; (2) that the appeal from the amended order was too late, and (3) that the appeal will be quashed.
Appeal No. 56, April T., 1931, by petitioner from order of C.P., Erie County, May T., 1928, No. 390, in the case of G.C. Kaltenbach v. The City of Erie, Penna.
Before TREXLER, P.J., KELLER, LINN, GAWTHROP, CUNNINGHAM, BALDRIGE and WHITMORE, JJ. Appeal quashed.
Rule for the vacation of the appointment of viewers. Before ROSSITER, P.J.
The facts are stated in the opinion of the Superior Court.
The court made absolute the rule. Petitioner appealed.
Error assigned, among others, was the order of the court.
Charles P. Hewes, for appellant. T.P. Dunn, and with him J.B. Held, for appellee. — An appeal to question the original jurisdiction of a tribunal must be taken within fifteen days of a decision of the jurisdictional question and no letter. Act of May 5, 1925, P.L. 23: Skelton v. Lower Merion Twp., 298 Pa. 471; Staryeu v. Midouhas et al., 299 Pa. 352.
Argued October 3, 1930.
On the 11th day of April, 1928, the plaintiff presented his petition to the Court of Common Pleas of Erie County asking for the appointment of viewers to fix and determine the damages to the leasehold which he held in said city, resulting from a change of grade of the street on which the property in which the petitioner had a leasehold abutted. The matter arose through an ordinance of the City of Erie, under a contract between the said city and the Pennsylvania Railroad Company and the New York Central Railroad Company providing for the elimination of a certain grade crossing.
The viewers were appointed. On April 27, 1928, the City of Erie presented a petition to the court for the vacation of the appointment of viewers, alleging that the court had no jurisdiction; that the matter in the first instance was one for the Public Service Commission and that there was no authority for the appointment of the viewers. A rule to show cause was granted and on May 3, 1928, the court made the rule absolute without prejudice.
More than two years thereafter, on June 19, 1930, the court below entered the following order: "The order of May 3, 1928, is amended to read as follows: The rule, therefore, granted April 30, 1928, to show cause why the appointment of viewers should not be vacated is now, June 19, 1930, made absolute and the proceedings dismissed, without prejudice."
We are all of the opinion that the order first made was a final order and that the present appeal is too late. The petition to vacate was directed to the want of jurisdiction on the part of the court to appoint the viewers. The matter involved was definitely decided by the court and ended the proceedings. The subsequent order made, as we have already observed, more than two years thereafter changed nothing.
The appeal is quashed.