Com., Dept. of Transp. v. Florek
| Decision Date | 08 February 1983 |
| Parties | COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, Appellant, v. Joseph M. and Mary FLOREK, his wife, Appellees. |
| Court | Pennsylvania Commonwealth Court |
Peter J. Comerota, John V. Rovinsky, Asst. Counsels, Dept. of Transp., Scranton, and Edward D. Werblun, Asst. Counsel, Harrisburg, for appellant.
David R. Lipka, Wilkes-Barre, for appellees.
Before ROGERS, WILLIAMS and MacPHAIL, JJ.
The Commonwealth of Pennsylvania, Department of Transportation (Department) The Department timely filed preliminary objections to the complaint asserting that the averments summarized above do not describe a compensable taking of the Floreks' property. An amended complaint was thereafter filed and virtually identical preliminary objections interposed with respect to the amended complaint. 1
appeals from an order of the Court of Common Pleas of Luzerne County dismissing the Department's preliminary objections to the complaint of Joseph and Mary Florek in which the Floreks aver that the Department has, by permitting [71 Pa.Cmwlth. 617] storm water to accumulate on their property, deprived them of its full use and enjoyment. The Floreks further aver that the offending water is collected by the impervious surface of an adjacent state highway within the Department's jurisdiction and is conducted onto and under their land by means of a storm drainage system which the Department has a duty to maintain but which has been the subject of inadequate maintenance. Finally, in their complaint the Floreks pray that a board of viewers be appointed to assess their damages related to this alleged de facto taking of their property by the Department.
Thereafter the matter of the preliminary objections was set down for argument to be conducted on June 9, 1981. The Department appeared by its counsel on the date fixed for argument and, on motion of the plaintiffs, the preliminary objections were dismissed by the trial judge for failure of the Department to have timely filed a brief as required by local Rule of Civil Procedure Number 210 which is as follows:
Rule 210. Briefs
(a) In any case listed for argument, the proponent must furnish copies of his brief to opposing counsel and each sitting judge no later than 4:00 P.M. on the second Monday preceding the argument week. The opponent shall furnish his brief to the proponent and each sitting judge no later than 4:00 P.M. on Monday of the week preceding argument week. Copies for the court shall be filed with the Court Administrator.
(b) If the proponent is not ready to proceed with brief or fails to answer the call of the list on the day of argument, the matter shall be dismissed as of course.
(c) If the opponent is not ready to proceed with brief the proponent may proceed ex parte.
We first reject the Floreks' argument that the Department's appeal in this Court must be dismissed as untimely. The order of the trial court here challenged was entered on June 12, 1981. The Department filed a notice of appeal in the trial court one week later on June 19, 1981, well within the thirty-day appeal period authorized by Pa.R.A.P. 903. As the Floreks indicate, the Department's notice of appeal did not comply in form or content with the requirements of Pa.R.A.P. 904 and, as a consequence of the defects, the appeal was not perfected and the record was not transmitted to this Court until March 31, 1982, following the Floreks' praecipe requesting the transfer of the appeal. Nevertheless, Pa.R.A.P. 902 provides in pertinent part
Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal ....
Here, the notice of appeal was timely filed and was filed, as is required by Pa.R.A.P. 903, with the clerk of the lower court.
The Department contends that the trial court ought not to have dismissed its preliminary objections primarily because the Department's counsel received insufficient notice of the prior action of the court in listing the matter of the preliminary objections for briefing and argument rather than for an evidentiary hearing. The Department asserts, and the Floreks apparently concede, that the...
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