Opinion
Argued December 9, 1986
February 18, 1987.
Eminent domain — Inverse condemnation — Preliminary objections — Eminent Domain Code, Act of June 22, 1964, P.L. 84 — Final order — Board of Viewers — Interlocutory order.
1. When the condemnee in an inverse condemnation case raises an objection to the appointment of a Board of Viewers, it must follow the procedure in Section 504 of the Eminent Domain Code, Act of June 22, 1964, P.L. 84, and file preliminary objections to the lower court's order of appointment; an appeal to the Commonwealth Court of Pennsylvania is improper. [105-6]
2. The appointment of a Board of Viewers in an eminent domain case with instructions to recommend a date of taking is not a final order; an appeal from such an unappealable, interlocutory order must be quashed. [106]
Argued December 9, 1986, before Judges CRAIG and DOYLE, and Senior Judge BLATT, sitting as a panel of three.
Appeal, No. 3329 C.D. 1984, from the Order of the Court of Common Pleas of Philadelphia County in the case of Greisler Brothers v. Commonwealth of Pennsylvania, Department of Transportation, No. 2009 February Term, 1968.
Petition to the Court of Common Pleas of Philadelphia County for appointment of viewers. Viewers appointed. Condemnor appealed to the Commonwealth Court of Pennsylvania. Order vacated and case remanded. Petition for appointment of viewers granted. GELFAND, J. Condemnor appealed to the Commonwealth Court of Pennsylvania. Affirmed ( 68 Pa. Commw. 493.) Viewers directed to assess damages and recommend date of taking, WILSON, J. Condemnee appealed to the Commonwealth Court of Pennsylvania. Held: Appeal quashed.
Lewis Kates, Kates Mazzocone, for appellant.
Scott M. Olin, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellee.
This is the appeal of Greisler Brothers (Appellant) from an order of the Court of Common Pleas of Philadelphia County appointing a Board of Viewers in the Appellant's inverse condemnation case against the Department of Transportation (DOT). The court ordered the Board of Viewers to assess damages and dismissed Appellant's petition to establish December 1, 1969 as the date of condemnation, pending the recommendation of a date by the Board of Viewers.
In Department of Transportation v. Greisler Brothers, 68 Pa. Commw. 493, 449 A.2d 832 (1982), we affirmed the trial court's conclusion that Greisler Brothers is entitled to consequential damages and we wrote that the amount of those damages must be set by the Board of Viewers. Greisler Brothers then petitioned the court of common pleas, pursuant to Section 407 of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P. S. § 1-407, to compel DOT to file a Declaration of Estimated Just Compensation and if DOT failed or refused to comply, to appoint an impartial expert appraiser. In a second petition, Greisler Brothers requested the court to enter an order establishing December 1, 1969 as the date of condemnation. The court, however, pursuant to Section 504 of the Code, 26 P. S. § 1-504, appointed a Board of Viewers and in the same order dismissed Greisler Brothers' petition to establish the date of condemnation, pending the recommendation of a date by the Board of Viewers.
This case has a long and tortuous procedural history which is recounted in Department of Transportation v. Greisler Brothers, 68 Pa. Commw. 493, 449 A.2d 832 (1982). The sole issue raised in the present appeal is whether the court of common pleas erred in directing the Board of Viewers to recommend a date of condemnation.
For the reasons which follow, we hold that this Court is without jurisdiction to consider the merits of Appellant's appeal. The court of common pleas, pursuant to Section 504 of the Eminent Domain Code (Code), appointed a Board of Viewers to assess damages and recommend a date of taking. Section 504 of the Code provides for the appointment of a Board of Viewers and states that "[a]ny objection to the appointment of viewers not theretofore waived may be raised by preliminary objections filed within twenty days after receipt of notice of the appointment of viewers." In City of Philadelphia v. Airportels, Inc., 14 Pa. Commw. 617, 322 A.2d 727 (1974) we held that this language meant that all disputes of fact and law and all objections to the appointment of viewers should be raised by preliminary objections. Although in an inverse condemnation case these preliminary objections are generally filed by the condemnor, where, as here, the condemnee has raised such an issue with regard to the appointment of viewers, the procedure under Section 504 of the Code is the same and requires that the condemnee file preliminary objections to the lower court's order of appointment. Appellant, instead of filing preliminary objections, improperly filed an appeal to this Court.
While DOT raised the issue of this Court's jurisdiction in its brief, it has not filed a motion to quash. We note, however, that such motion is unnecessary because an appellate court cannot (except in limited circumstances not present here, see n. 4) assume jurisdiction over an interlocutory order. Kratz v. Board of Commissioners of Upper Gwynedd Township, 88 Pa. Commw. 108, 488 A.2d 670 (1985).
Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P. S. § 1-504.
Moreover, we also find that the order appealed from is not a final order; rather, it is an unappealable interlocutory order. A final order terminates the litigation between the parties, disposes of the entire case, or precludes a party from presenting the merits of his or her claim. Piltzer v. Independence Federal Savings and Loan Association, 456 Pa. 402, 319 A.2d 677 (1974). See Kratz v. Board of Commissioners of Upper Gwynedd Township, 88 Pa. Commw. 108, 488 A.2d 670 (1985). The appointment of a Board of Viewers with instructions to recommend a date of taking does not dispose of this case nor does it preclude a party from presenting the merits of his claim. Even with the failure to file preliminary objections, Appellant can appeal the date recommended by the Board of Viewers to the court of common pleas, and the court may then on appeal "confirm, modify, change the report or refer it back to the same or other viewers."
Interlocutory orders are not appealable unless they fit within one of the following exceptions:
(1) interlocutory orders specifically enumerated as appealable in Pa. R.A.P. 311;
(2) interlocutory orders made appealable by statute or general rule, 42 Pa. C. S. § 5105(c); Pa. R.A.P. 311(a)(7); or
(3) interlocutory orders where permission to appeal is granted by an appellate court, 42 Pa. C. S. § 702(b); Pa. R.A.P. 312; Pa. R.A.P. 1311.
See Department of Transportation Appeal, 81 Pa. Commw. 262, 473 A.2d 262 (1984).
Section 515 of the Code; 26 P. S. § 1-515.
Section 517 of the Code; 26 P. S. § 1-517.
Since the order appealed from here is an unappealable interlocutory order, this appeal is quashed.
ORDER
NOW, February 18, 1987, the appeal of Greisler Brothers from the order of the Court of Common Pleas of Philadelphia County dated October 15, 1984 is hereby quashed.