DocketNumber: Appeal, No. 463 C.D. 1985
Citation Numbers: 100 Pa. Commw. 546, 515 A.2d 102
Judges: Kalish, Palladino, Rogers
Filed Date: 9/18/1986
Status: Precedential
Modified Date: 6/24/2022
Opinion by
This is an appeal by the Pennsylvania Department of Transportation (DOT) from an order of the Court of Common Pleas of Montgomery County (trial court) which sustained an objection to, and modified a legal conclusion in, a report by a Board of View and dismissed other objections to the report.
On April 2, 1982 DOT filed a Declaration of Taking of 6,864 square feet of real property owned by Roy and Cynthia Fackler (Condemnees) and located in Montgomery County. The property was being used as an automobile service station. Condemnees filed preliminary objections to the Declaration of Taking asserting that DOT had abused its discretion in condemning the property or, in the alternative, that another condemnation plan was available which would not have put Condemnees out of business. Condemnees’ preliminary objections were dismissed by the trial court.
On May 10, 1983, Condemnees filed a Petition for the Appointment of a Board of View (viewers). The viewers were appointed, and evidentiary hearings were held on September 9, 1983 and October 14, 1983. The viewers filed their report on February 24, 1984 awarding damages in the amount of $156,500 to Condemnees and making extensive findings of fact.
DOT now appeals from the order of the trial court asserting that the trial court committed an error of law by not modifying the findings of the viewers and by refusing to remand the case to the viewers to redetermine the value of the property in a manner consistent with the trial courts modifications. Specifically, DOT asserts that the trial court erred in not modifying the following findings of the viewers:
1. ‘The Board [of View] finds that it lacks sufficient evidence to make a determination that the remainder of the Condemnees property as shown on the plan filed with the Declaration of Taking, was deliberately not condemned by [DOT].’ (Viewer’s finding number 16); and
2. ‘The Board [of View] finds that it lacks jurisdiction to rule on whether or not Condemnees are in violation of the order dated March 28, 1969, of the Zoning Hearing Board of Montgomery Township.’ (Viewer’s finding number 14).
Additionally, DOT contends that the trial court erred in not striking specific factual findings of the viewers relating to the zoning classification of the property, the value of Condemnees’ business, and the compensability of a loss of access to Condemnees’ property. Finally, DOT contends that the trial court erred in refusing to order that the testimony presented by Condemnees’ valuation expert to the viewers be stricken.
All objections, other than to the amount of the award, raised by the appeal shall be determined by the court preliminarily. The court may confirm, modify, change the report or refer it back to the same or other viewers. A decree confirming, modifying or changing the report shall constitute a final order. . . .
In the case of Hershey v. Exxon, 20 Pa. Commonwealth Ct. 537, 342 A.2d 497 (1975), this Court held that Section 517 of the Code grants broad discretionary authority to the courts of common pleas with respect to decisions to remand. Id. at 544, 342 A.2d at 501. In Hershey, we concluded that the trial court’s refusal to remand the case to the viewers caused no prejudice to the lessee/condemnee’s interest because the condemnee would be able to present evidence to the trial court in order to establish its interest in the condemned property. Id.
Furthermore, we conclude that the trial court’s order dismissing all but one of the objections raised by DOT is not a final order. Therefore, this Court is without jurisdiction to render a decision on the merits of these objections. See PennDOT v. Shartzer, 94 Pa. Commonwealth Ct. 355, 503 A.2d 1028 (1986).
makes a change in procedure by combining in one proceeding designated as an appeal, the practice of exceptions as to questions of law and the filing of a separate appeal as to questions of fact. There was confusion in many of the lower courts and even appellate courts as to whether exceptions or appeal was the proper procedure, and often as a matter of course to protect the record, attorneys made a practice of filing both.
Subsection (a)(4) [of Section 516 of the Code, 26 P.S. §1-516] is intended to cover what formerly were exceptions. ‘Objections’ is not intended to mean objections to rulings on evidence, competency, etc.; it means objections to the report. Under existing law, an appeal on the merits as to damages is considered a trial de novo and neither the viewers’ report nor any of their findings nor the amount of the award are admitted for the appeal, nor can they be introduced into evidence. . . . Therefore, on appeal the appellant-condemnee must, for example, introduce proof of ownership and interest, and the record without such proof is defective; this practice is continued.
Comment to Section 516 of the Code, Comment at 26 P.S. §1-516.
Despite the apparent intention of the Commission to eliminate the bifurcated procedure of addressing questions of law by means of exceptions and questions
However, the courts have also acknowledged that it is not always possible to determine these objections preliminarily on the basis of briefs and oral argument because the objections often involve questions of fact or mixed questions of law and feet. See Hershey v. Department of Transportation, 20 Pa. Commonwealth Ct. 537, 342 A.2d 497 (1975). In Hershey we held that the legislative intent of Section 517 of the Code, 26 P.S. §1-517, is to permit the trial court to determine preliminarily only questions of law basic to the inquiry. The Hershey court also stated that the proper procedure for determining facts is within the discretion of the trial judge, who may rely on the record made before the viewers, hold an evidentiary hearing or postpone the determina
This Court has also held that the word ‘preliminarily’ in Section 517, describes the time reference within which the objections to the viewers’ report must be settled. The General Assembly’s intent was to have the viewers’ report settled preliminarily to the start of a trial de novo, not to require initial settling of all questions of law prior to a trial de novo.
Kellman Fund v. Department of Transportation, 24 Pa. Commonwealth Ct. 102, 118-19, 354 A.2d 583, 594-95 (1976).
Finally, we note that the Pennsylvania Supreme Court has stated:
The Board of Viewers is not part of the judicial system of the Commonwealth, nor is the procedure established by it necessary to the realization of the right to compensation upon the taking of private property, as guaranteed to a property owner by the Constitution of Pennsylvania. Proceedings before it are merely a preliminary step, provided by statute to ascertain damages and to afford a report or estimate which may be the basis for an agreement between the condemning body and the property owner fixing damages to be paid. It saves, in many instances, the time and expense of a jury trial.
Commonwealth ex rel. Kelly v. Cantrell, 327 Pa. 369, 376-77, 193 A. 655, 659-660 (1937). Although this statement was made prior to the enactment of the Code, we find that it is consistent with the intent of the Code, which permits the parties to waive proceedings before the viewers. See Section 520 of the Code, 26 P.S. §1-520. We believe it is also consistent with Section 517 of
Our review of the case law with respect to the finality of orders dismissing objections to the reports of viewers, leads us to conclude that our appellate jurisdiction to review such orders should be construed very narrowly. In most instances the findings of the viewers to which objections have been raised will be the subject of testimony and legal rulings in the trial de novo. The findings of the viewers and the action of the trial court sustaining or dismissing objections thereto are not the final action which will be taken by the trial court with respect to the issues so raised. Our opinion on these issues, therefore, will often be advisory at best. Advisory opinions are not within the purview of an appellate court’s jurisdiction. Sheppard v. Old Heritage Mutual Insurance Company, 51 Pa. Commonwealth Ct. 490, 414 A.2d 1109 (1980), aff'd, 499 Pa. 217, 452 A.2d 1017 (1982).
Mindful of this background, we must now determine whether the issues raised in this appeal are ripe for our review. With respect to the first issue raised by DOT, whether the trial court erred in holding that the viewers
With respect to the second issue raised by DOT, whether the trial court erred in upholding the viewers’ finding that they lacked sufficient evidence to determine whether the remainder of the subject property was deliberately not condemned, we hold that this issue has been finally determined in a previous proceeding and is now res judicata. Section 406 of the Code, 26 P.S. §1-406, provides that preliminary objections to the declaration of taking shall be the exclusive method of challenging the power or right of the condemnor to appropriate the condemned property and to the declaration of taking. Issues of the scope or validity of the taking are properly asserted by preliminary objections to the declaration of taking. Carr v. Philadelphia Electric Company, 4 Pa. Commonwealth Ct. 571, 287 A.2d 917 (1972). In the case at bar, Condemnees did file preliminary objections to the declaration of taking, challenging the scope of the condemnation. These objections were dismissed, and Condemnees’ appeal to this Court from
The remaining issues raised by DOT all go to the amount of damages awarded by the viewers. The testimony and findings challenged by DOT are no longer relevant because they will be relitigated in the trial de novo at which the testimony, the findings, and the award of the viewers will be inadmissable. Because the trial court will have to make evidentiary rulings on the basis of the evidence offered at the trial de novo, which evidence may differ significantly from that offered to the viewers, the trial courts order dismissing DOTs objections on these points is interlocutory. Were this Court to rule on these issues at this time, our order would be advisory.
The order of the trial court dismissing DOTs objection relating to the scope of the taking is reversed. The appeal is otherwise dismissed as interlocutory.
Order
And Now, September 18, 1986, the order of the Court of Common Pleas of Montgomery County, dated January 17, 1985 at No. 82-04973 dismissing the Pennsylvania Department of Transportations objection relating to the scope of the taking is reversed. The appeal is otherwise dismissed as interlocutory.
The trial courts dismissal of Condemnees’ preliminary objections was appealed to this Court on September 24, 1982 at 2392 C.D. 1982. The appeal was withdrawn on June 22, 1984. Petitions for a stay of the trial court’s order were denied by this Court, and by the Pennsylvania Supreme Court No. 29 E.D. Misc. Docket 1983, filed March 1, 1983.
Although all of the viewers’ findings are designated findings of feet, we note that many are actually conclusions of law.