Appeal of Edgewood Bldg. Co., Inc.

• Citation: 402 A.2d 276,43 Pa.Cmwlth. 91
• Parties: 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. Appeal of EDGEWOOD BUILDING CO., INC.
• Decision Date: 29 May 1979
• Court: Commonwealth Court of Pennsylvania

Page 276

402 A.2d 276

43 Pa.Cmwlth. 91

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.

Appeal of EDGEWOOD BUILDING CO., INC.

Commonwealth Court of Pennsylvania.

Argued April 5, 1979.

Decided May 29, 1979.

[43 Pa.Cmwlth. 92] Alfred O. Breinig, Jr., Jenkintown, Pa., for appellant.

Pearlstine, Salkin, Hardiman & Robinson, C. Stephens Vondercrone, Jr., Lansdale, for appellee.

Before MENCER, ROGERS and CRAIG, JJ.

OPINION

ROGERS, Judge.

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 Curtis 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...