Philadelphia Parking Authority, In re

• Decision Date: 19 March 1963
• Citation: 410 Pa. 270,189 A.2d 746
• Parties: In the Matter of the PHILADELPHIA PARKING AUTHORITY of the City of Philadelphia, Eighth and Filbert Streets Project. Appeal of Frances H. SELIGSOHN.
• Court: Pennsylvania Supreme Court

Page 746

189 A.2d 746

410 Pa. 270

In the Matter of the PHILADELPHIA PARKING AUTHORITY of the City of Philadelphia, Eighth and Filbert Streets Project Appeal of Frances H. SELIGSOHN.

Supreme Court of Pennsylvania.

March 19, 1963.

Rehearing Denied April 18, 1963.

Nathan B. Feinstein, Reuben E. Cohen, Cohen, Shapiro & Cohen, Philadelphia, for appellant.

Harry Shapiro, Shapiro, Rosenfeld, Stalberg & Cook, Philadelphia, David N. Bressler, Philadelphia, for appellee.

Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN and O'BRIEN, JJ.

JONES, Justice.

The Philadelphia Parking Authority [Authority], proposing to erect a public parking garage in the vicinity of 8th and Filbert Streets, Philadelphia, on February 23, 1962 adopted a resolution condemning certain specified property [appraised at $1,548,500] in that area, including property located at the northeast corner of 8th and Filbert Streets owned by Frances H. Seligsohn [appellant]. On March 1, 1962, the Authority petitioned Court of Common Pleas No. 3 of Philadelphia County for the appointment of a Board of Viewers and, on March 5, 1962, a Board of Viewers was appointed.

On March 6, 1962, the Authority filed a petition in the same court for leave to file its bond ¹ and the court granted a rule upon the appellant to show cause why the Authority should not be permitted to file its bond. On March 28, 1962, the appellant filed preliminary objections ² to which the Authority made answer the next day. After a hearing on April 2, 1962, the court or April 4, 1962 entered an order and decree The order provided: 'April 4, 1962. Preliminary objections of [appellant] are overruled. Rule for leave to file a bond made absolute. Bond to be entered in the sum of $3,000,000., see decree, Milner, P. J.' The decree provided: 'And Now, to wit, this 4th day of APRIL, A.D. 1962, upon consideration of the within petition and upon motion of [counsel for the Authority], the Court orders and decrees that leave be granted [the Authority] to file its bond in the sum of $3,000,000 to secure the payment of damages that may be agreed upon or assessed according to law to the owners of, or persons entitled thereto, by reasons of the taking and appropriating of the premises within described. Upon filing of said bond, [the Authority] is authorized to take possession of said properties for the use set forth in the Petition. BY THE COURT, Byron A. Milner, P. J.'

On April 12, 1962, the appellant filed two separate appeals in this Court: (1) an appeal [No. 304] from the order overruling the preliminary objections and (2) an appeal [No. 305] from the decree granting leave to the Authority to file its bond.

On September 10, 1962, the Authority moved to quash both appeals on the ground that both the order and decree were interlocutory in nature. In answer to the motions to quash, appellant takes the position: (a) that the appeal from the order raises a jurisdictional question under the Act of March 5, 1925, P.L. 23, § 1, 12 P.S. § 672; (b) that that portion of the decree which authorized the Authority to take possession of the properties makes the decree a final decree.

Preliminarily, we must determine whether either or both appeal must be quashed.

First, as to the appeal from the order overruling the preliminary objections. In Dozor Agency v. Rosenberg, 403 Pa. 237, 240, 169 A.2d 771, 773, we said: '* * * generally speaking, an order overruling preliminary objections is interlocutory and not appealable; ³ [citing a case]. That general rule is, however, subject to the exception that if a question of jurisdiction is involved that question is appealable under the Act of March 5, 1925 [citing a case].' Does the present appeal fall within the exception, i. e. is a question of jurisdiction involved? If it does not, the appeal must be quashed; if it does, the appeal is limited to a determination whether the court below had jurisdiction (Holmes' Petition, 383 Pa. 99, 102, 117 A.2d 704).

Paragraph 2 of the preliminary objections avers, in substance, that the relevant statute (Act of March 26, 1903, P.L. 63, § 2, 53 P.S. § 1201) ⁴ requires that the Authority make a tender of its bond to the parties claiming or entitled to damages as a prerequisite to the presentation to the court of common pleas of a petition for leave to file its bond and that the Authority, in the case at bar, never made any such tender. It is appellant's theory that the Authority's failure to tender such bond goes to the jurisdiction of the court of common pleas to entertain this petition. ⁵ The Authority's position is three-fold: (a) that paragraph 2 does not raise a question of jurisdiction; (b) that, if failure to tender its bond to appellant is a jurisdictional fact, appellant has waived the question of jurisdiction; (c) that the Authority is not required to tender or file any bond under the present law.

The Act of 1903, supra,--the statutory authority for filing this bond in a court of common pleas--provides, in pertinent part: 'In cases where the city [Authority] and the owner or owners cannot agree as to the price or damages to be paid, * * * the said city [Authority] may tender its bond to the party claiming or entitled to said moneys or damages, * * *: Provided, however, That in case the party claiming damages refuses to or does not accept said bond, as tendered, the said city [Authority] [after giving certain prescribed written notice] may present said bond to the proper court of common pleas, * * *; and if the said bond is approved, it shall be filed in said court for the use of those interested. * * *' (emphasis supplied). It is to be noted that this statute provides that the city [Authority] may tender its bond to the property owner and may present its bond to the court. In view of the basic purpose of this statute, i. e. the securing of compensation to property owners in accord with the constitutional mandate, the word 'may' must be construed as 'shall', as mandatory rather than permissive: Hotel Casey Co. v. Ross et al., 343 Pa. 573, 23 A.2d 737; Melnick v. Melnick et al., 147 Pa.Super. 564, 24 A.2d 111. Therefore, under the statute, it became the duty of the Authority, unless excused, to tender its bond to the property owner before presenting the bond in the court of common pleas. Our inquiry is whether the failure of the Authority to perform this statutory duty deprived the court of common pleas of jurisdiction.

Two principles of law must be kept in mind: (a) 'At best such proceedings [condemnation proceedings] are out of the course of the common law, and, therefore, the statutory requisites should be strictly pursued': Ritenbaugh v. Chester Valley R. R. Co., 21 Pa. 100, 106; O'Hara, etc. v. Pennsylvania Railroad Co., 25 Pa. 455; Johnston v. Delaware L. & W. R. R. Co., 245 Pa. 338, 348, 91 A. 618; (b) 'The test of jurisdiction is whether the court has power to enter upon the inquiry, not whether it may ultimately decide that it is unable to grant the relief sought in the particular case: [citing cases].' (emphasis supplied); Main Cleaners & Dyers, Inc. v. Columbia Super Cleaners et al., 332 Pa. 71, 74, 2 A.2d 750, 751; Witney v. Lebanon City, 369 Pa. 308, 85 A.2d 106; Strank v. Mercy Hospital of Johnstown, 376 Pa. 305, 102 A.2d 170; Hellertown Borough Referendum Case, 354 Pa. 255, 47 A.2d 273; Rankin's Appeal et al., 346 Pa. 167, 29 A.2d 483.

The Act of 1903, supra, requires that, if the Authority and the property owner cannot agree upon the price or damages to be paid, the Authority must tender a bond and then, upon refusal or nonacceptance by the property owner of the bond tender, the Authority must proceed in court. Obviously, the statute requires these steps to be taken preliminary to any court procedure. In this connection it is most important to note the position taken by our courts on the nature of such preliminary steps. In Darlington v. United States, 82 Pa. 382, this Court held that the condemnor's failure to establish that an attempt had been made to agree with the property owner on the price or damages to be paid was of such nature as to deprive the court of jurisdiction to appoint viewers. In Re Bond of Equitable Gas Co., 72 Pa.Super. 371, the Superior Court indicated that the fact that the parties were unable to agree on compensation for damages and the fact that a bond had been tendered were jurisdiction facts which had to be established as prerequisite to proceeding in court. ⁶ In Jones v. Tatham, 20 Pa. 398, the condemnor, seeking the appointment by the court of a board of viewers, had not established that the property owner had refused permission to enter upon the land or that the parties were unable to agree upon compensation or that the property owner had refused or neglected to join in the appointment of viewers. This Court said (p. 410): 'The jurisdiction given to the Common Pleas, in this respect, is a special one, cotrary to the course of the common law, and must therefore be strictly pursued. It is not shown that * * * [the owner] was requested to permit an entry, or to agree upon the compensation, or to join in the appointment of men to assess the amount. In the absence of these preliminary steps, the application to the Common Pleas was totally unauthorized, and the whole proceeding was coram non judice.' (emphasis supplied). In Oak Grove Water Co. v. Thompson, 235 Pa. 486, 84 A. 502, the condemning authority in presenting its bond for court approval failed to prove that the parties had been unable to agree or that it had tendered a bond to the property owner; this Court affirmed the action of the court below which had declined to approve the bond stating, inter alia, that since the condemning authority had 'failed to supply certain requisites necessary to vest jurisdiction in the court under their application, we decline at this time to approve the bond.' (p. 490, 84 A. p. 503) (emphasis supplied). A review of these authorities clearly indicates that the condemning...