O'Keefe v. Altoona City Authority

Opinion by Judge Crumlish, Jr., The sole issue which we are called upon to resolve here is whether appellants’ petition for the appoint — 399 — ment of viewers should have been refused by the Court of Common Pleas of Blair County because of the interdiction of the statute of limitations. On March 29, 1956, by agreement and with the consent of appellants, employees of the city of Altoona (City) entered upon appellants’ land and installed an underground water line and a surface manhole covering.1 The arrangement between the City and appellants called for the City to assess damages and provide for compensation at an undetermined date. No declaration of taking had been filed nor had condemnation proceedings of any kind been instituted. After the work was completed, neither party acted until November 5, 1971 when appellants petitioned for the appointment of viewers.2 The City filed preliminary objections contending that this petition was barred by the statute of limitations. After hearing, the court below sustained the preliminary objections and dismissed the petition. Hence this appeal. It is clear that if a corporate body, clothed with the power of eminent domain, enters upon and appropriates for its own use the private property of another the landowner may treat this as a valid condemnation even though the statutorily prescribed condemnation procedure was not followed. Rosenblatt v. Pa. Turnpike Commission, 398 Pa. 111, 157 A. 2d 182 (1959). Moreover, when a taking has been effected without the con — 400 — demnation procedure having been followed, the landowner may petition the court for the appointment of viewers to assess and award damages. Griggs v. Allegheny County, 402 Pa. 411, 168 A. 2d 123 (1961), rev’d on other grounds, 369 U.S. 84 (1962). Appellee, in support of its preliminary objections, refers us to Act of April 3,1956, P. L. 1366, §3, 26 P.S. §153, which provides: “In any case whereby the exercise of the power of eminent domain a political subdivision or authority has become entitled to the possession of private land, property or material for any interest therein prior to the effective date of this act, a petition for the appointment of viewers for the assessment of damages may be filed or an action for damages may be brought within six years from such date and not thereafter. All claims shall be forever barred after the expiration of the period of six years.” This section, according to appellee, bars this action because the prescribed period would have expired in April of 1962. Language in another section of that act, however, provides that “[t]his act shall not apply to petitions for the appointment of viewers for the assessment of damages or to actions for damages as the result of the exercise of the power of eminent domain by any authority unless (1) a copy of the resolution by which such authority exercises its power of eminent domain is personally served on the owner of the affected property, or (2) if the owner cannot be served personally, service of a copy of the resolution is made on the owner by registered or other mail service ... or (3) if the owner cannot be served personally or by mail as herein provided, unless the resolution is published at least one time in a newspaper of general circulation in the county in which the affected property is located and at least one time in the legal periodical, if any, of such county.” Act of April 3, 1956, P. L. 1366, §2, 26 P.S. §152. This — 401 — language, while appearing in §2 of the Act, also specifically applies to §3. Since there was never any personal, mailed or published service, or even an appropriate resolution, appellants contend that no statute of limitations applies and that this case is controlled by Brankin v. Philadelphia, 286 Pa. 331, 133 A. 563 (1926) which held that no statute of limitations bars a landowner’s right to compensation for condemnation.3 We do not agree. First of all, there is a strong argument that the provisions of §2 of the Act, 26 P.S. §152 requiring service or publication of a condemnation resolution are for the purpose of providing notice of a proposed change to the property of a landowner so that he may vigilantly protect his rights in the manner prescribed by law. But here the City entered onto Appellants’ land, with his actual knowledge and acquiescence. Appellants knew of the proposed change and sat by to its consummation. Six years would be ample time in which to assert a claim for whatever loss they may have felt to be theirs. It is not necessary, however, for us to so conclude in disposing of this case. The facts are that the value of appellants’ land was diminished by the City’s acts and they have never been justly compensated. But allowing appellants the benefit of every possible doubt and sympathy and assuming, without deciding, that lack of service lifted them out of the stricture of the application of the statute of limitations, this claim must be barred under operation limitation period of the 1964 Eminent Domain Code.4 Section 502(e) of the Code, 26 P.S. §l-502(e) authorizes a condemnee to file a petition for the appoint — 402 — ment of viewers in a de facto condemnation.5 Section 524 of the Code, 26 P.S. §1-524 provides: “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 this Act when 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 . . . .” Assuming, for the benefit of appellants, that the 1956 statute of limitations was not applicable and that the institution of proceedings was not barred by the running of any limitation period, the Eminent Domain Code became applicable to this proceeding as of the date of its enactment, June 22, 1964. Upper Montgomery Joint Authority v. Yerk, 1 Pa. Commonwealth Ct. 269, 274 A. 2d 212 (1971). Even were we to use the date of the enactment of the Code, June 22, 1964, as the starting point, see Yerk, supra, the petition herein is barred by the expiration of the limitations period (June 22, 1970) since it was not filed until November 5, 1971. It is not for us to determine whether appellants should have proceeded in Trespass, Assumpsit, Ejectment or in any other form of action. This is a proceeding in Condemnation and the cause of appellants is barred by the statute of limitations. Appellants here have failed to utilize the protection afforded them by legislative direction. Their procrastination or lack of vigilance is their undoing. As written in Ulakovic v. Metropolitan Life Insurance Co., 339 — 403 — Pa. 571, 576, 16 A. 2d 41, 43 (1940), “[t]hese and similar legislative enactments are expressive of the feeling of mankind that where there are wrongs to be redressed, they should be redressed without unreasonable delay, and where there are rights to be enforced, they should be enforced without unreasonable delay.” Affirmed. Footnotes [1] The record shows that original entry was made on March 22, 1956. When appellants objected, the employees left, and returned the next week after an agreement had been reached between the appellants and the appellee’s solicitor. [2] Preliminary objections were filed to the original petition alleging imprecise information and bar by the statute of limitations. Appellants were permitted to amend this petition and after the amendment, the statute of limitations was once again proffered as a bar to the action. [3] Brankin was decided at a time when no statute of limitations of any type in condemnation proceedings had been enacted. [4] Act of June 22, 1964, P. L. 84, Art. V, §524, 26 P.S. §1-524. [5] For a discussion of de facto condemnations see Central Bucks Joint School Building Authority v. Rawls, 8 Pa. Commonwealth Ct. 491, 303 A. 2d 863 (1973); Commonwealth’s Crosstown Expressway Appeal, 3 Pa. Commonwealth Ct. 1, 281 A. 2d 909 (1971).