Summary
holding that where a condemnee provided no excuse for a late filing of preliminary objections and the condemnor bore no responsibility for the delay, refusal to allow a late filing is not an abuse of discretion
Summary of this case from In re Land Owned by Wexford Plaza AssocOpinion
Argued April 5, 1979
May 29, 1979.
Eminent domain — Service of notice of declaration of taking — Eminent Domain Code, Act 1964, June 22, P.L. 84 — Certified mail — Inapplicability of Pennsylvania Rules of Civil Procedure — Timeliness of preliminary objections — Nunc pro tunc filing — Discretion of court.
1. Under the Eminent Domain Code, Act 1964, June 22, P.L. 84, service of a notice of a declaration of taking upon a condemnee which starts the time running for the filing of preliminary objections may be accomplished by service in the same manner as service of a summons or complaint or by certified or registered mail, and Pennsylvania Rules of Civil Procedure providing for service on corporate entities are inapplicable to condemnation actions which are exclusively controlled by statute. [93-4]
2. Service of a notice of a declaration of taking upon a corporate condemnee by certified mail is sufficient under the Eminent Domain Code, Act 1964, June 22, P.L. 84. [94]
3. Under the Eminent Domain Code, Act 1964, June 22, P.L. 84, it is within the court's discretion to permit or disallow the filing nunc pro tunc of preliminary objections to a declaration of taking, and action by the court denying such request will not be disturbed on appeal unless such discretion was abused. [94]
4. A court does not abuse its discretion in denying a request to file preliminary objections to a declaration of taking nunc pro tunc, when the delay in filing was due solely to the inadvertance of the condemnee and was in no way related to conduct of the condemnor. [94-5]
Argued April 5, 1979, before Judges MENCER, ROGERS and CRAIG, sitting as a panel of three.
Appeal, No. 2194 C.D. 1977, from the Order of the Court of Common Pleas of Montgomery County in case of A Condemnation Proceeding in Rem by Hatfield Township for the Purpose of Acquiring Fee Simple Title to Property Situate in Hatfield Township for Park and Recreational Purposes, No. 76-21111.
Declaration of taking in the Court of Common Pleas of Montgomery County. Condemnees filed preliminary objections. Preliminary objections of condemnee Edgewood Building Co., Inc. stricken. Petition for leave to file preliminary objections nunc pro tunc denied. Moss, J. Condemnee appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Alfred O. Breinig, Jr., for appellant.
C. Stephens Vondercrone, Jr., with him Pearlstine, Salkin, Hardiman and Robinson, for appellee.
Edgewood Building Co., Inc. (Edgewood), has appealed from an order of the Court of Common Pleas of Montgomery County granting Hatfield Township's motion to strike Edgewood's preliminary objections to a Declaration of Taking and denying the prayer of Edgewood's petition for leave to file its preliminary objections nunc pro tunc. The court struck Edgewood's preliminary objections because they were filed more than thirty days after service of the Notice of the filing of the Declaration and denied Edgewood's application to file preliminary objections nunc pro tunc for their failure to give sufficient reason why Edgewood should have that relief.
The subjects of the Township's Declaration of Taking were a number of small lots in an old land subdivision, some owned by Grace Building Co., Inc., some owned by Curtis Building Co., Inc. and two owned by the appellant, Edgewood. Each of the owners was served with the Notice of the filing of the Declaration of Taking by certified mail sent January 10, 1977. Return receipts showed that the mailing to Edgewood was delivered on January 11, 1977 and that the mailing to Curtiss was delivered on January 13, 1977. For reason not necessary to explain, the Notice was not sent to Grace but it nevertheless filed timely Preliminary Objections. On February 14, 1977 an attorney representing all three condemnees filed one pleading setting out preliminary objections of each of the condemnees. The Township's motion to strike Edgewood's preliminary objections followed.
Edgewood says that the court below should not have struck its preliminary objections because the certified mail by which service of the Notice of condemnation was made was sent without restrictive notation, by which it seems to mean without requiring the postal authorities to deliver the item only to some individual Edgewood officer, agent or employee. Edgewood relies in this regard on Pa. R.C.P. No. 2180, providing that service on corporations and similar entities in actions covered by the Rules of Civil Procedure shall be made on officers, persons in charge of an office or persons authorized to accept service. The argument is wholly without merit. Section 405 of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, 26 P. S. § 1-405, provides:
(b) The notice shall be served within or without the Commonwealth by any competent adult, in the same manner as a complaint or writ of summons in assumpsit, or by certified or registered mail, to the last known address of the condemnee. . . . (Emphasis added.)
The comment of the Joint State Government Commission 1964 Report states, "Where the notice is mailed, the condemnor has the option of using either certified or registered mail." The "or" emphasized in the above quoted language is meant to be disjunctive. Spector v. Vignola, 446 Pa. 1, 285 A.2d 869 (1971). Therefore, the Notice of filing of the Declaration of Taking was properly served by certified mail. Edgewood's reliance on Pa. R.C.P. No. 2180 is misplaced. The Eminent Domain Code provides the exclusive procedure for application in actions subject to the Code and the Rules of Civil Procedure have no application to such actions. Pennsylvania Department of Transportation v. Ambrosia, 24 Pa. Commw. 8, 354 A.2d 257 (1976). Furthermore, Edgewood does not explain how the Township would know who were the corporations' officers, employees or agents or why the postal authorities would undertake to deliver mail to a corporate functionary by the title of officer, employee or agent.
Edgewood has a heavy burden in undertaking to show that the court below abused its discretion in denying the prayer of the petition to file preliminary objections nunc pro tunc. Section 406 of the Code, 26 P. S. § 1-406, provides pertinently:
(a) Within thirty days after being served with notice of condemnation the condemnee may file preliminary objections to the declaration of taking. The court upon cause shown may extend the time for filing preliminary objections. . . . (Emphasis added.)
We had the same issue before us in Smith v. Pennsylvania Department of Transportation, 25 Pa. Commw. 56, 358 A.2d 734 (1976). We held there that where the condemnee provided no excuse for the late filing of preliminary objections and the condemnor bore no responsibility for the delay, the court's refusal to permit a late filing was not an abuse of discretion. Edgewood alleged that its failure to inform its counsel of the date it received the Notice of the Declaration of Taking was the result only of inadvertance and there is nothing in the record suggesting that the Township had anything to do with the late filing. Finding nothing manifestly unreasonable, partial, prejudiced or biased in the lower court's action, we will not disturb it. See Mielcuszny v. Rosol, 317 Pa. 91, 176 A. 236 (1934).
Order affirmed.
ORDER
AND NOW, this 29th day of May, 1979, the order of the Court of Common Pleas of Montgomery County, entered on October 14, 1977, granting Hatfield Township's motion to strike the preliminary objections of Edgewood Building Co., Inc. to the Declaration of Taking and denying the prayer of Edgewood's petition for leave to file preliminary objections nunc pro tunc, is hereby affirmed.