Petition for Writ of Certiorari — Barker v. City of Philadelphia
Supreme Court brief1990
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No. JAN 29 G9
JOSERHE-SPANIOL J
IN THE CLERK a7
, ee
SUPREME COURT OF THE UNITED STATES
January Term, 1990
ALLISTER BARKER,
Plaintiff-Petitioner
Uv.
CITY OF PHILADELPHIA
and
LEONARD H. DAGIT, INC.,
Defendants-Respondents
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF
PENNSYLVANIA, EASTERN DISTRICT
MARTIN B. PITKOW
Counsel of Record
ALVIN FREIBERG
DAVID B. COMROE
GLENN F. HING
REBECCA M. LANDES
ROBERT J. WILSON
Counsel for Petitioner
LIPMAN, FREIBERG, COMROE & HING
1700 Market Street
Suite 1400
Philadelphia,-Pennsylvania 19103
(215) 568-0400
PACKARD PRESS / LEGAL DIVISION, 1617 JFK BOULEVARD, PHILA, PA. 19103 (215) 563-9000
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QUESTIONS PRESENTED
I. Did the Supreme Court of Pennsylvania, the
Commonwealth Court of Pennsylvania and the Court of
Common Pleas of Philadelphia County through their
interpretation of the right and ability of a litigant to
amend pleadings under the Pennsylvania Rules of Civil
Procedure and/or the Eminent Domain Code of the
Commonwealth of Pennsylvania, or by denial of review
thereof, conflict with federal procedural due process,
deprive petitioner of his procedural due process rights
under the fifth and fourteenth amendments of the
Federal Constitution and potentially deprive all litigants
in the Commonwealth of Pennsylvania of their proce-
dural due process rights under the Federal Constitution
so that certiorari is warranted?
IA. Did the state courts of Pennsylvania deprive
petitioner of his due process right to be heard when the
appellate court of Pennsylvania overruled the trial court
and decided that petitioner had no right to amend his
pleading despite the fact that petitioner’s initial plead-
ing, which stated a cause of action, was filed within the
applicable statute of limitations and was subsequently
dismissed at a preliminary level after the statute of
limitations had expired by an order of court which was
silent as to amendment?
IB. Did the Supreme Court of Pennsylvania deprive
petitioner of his procedural due process rights under the
Federal Constitution by denying petitioner’s petition for
allowance of appeal from the order of the Common-
wealth Court of Pennsylvania, which petition raised the
federal question of the denial of petitioner’s due process
rights?
IC. Did the Commonwealth Court of Pennsylvania
deprive petitioner of his procedural due process rights
under the Federal Constitution by unconstitutionally
engaging in legislative rulemaking and by improperly
promulgating a new statute or rule pertaining to amend-
ment of petitions for the appointment of a board of
viewers and by enforcing it retroactively?
ID. Did the Commonwealth Court of Pennsylvania
deprive petitioner of his procedural due process rights
under the Federal Constitution through its interpreta-
tion of the Pennsylvania Rules of Civil Procedure with
regard to amendment of pleadings, which interpretation
conflicted with federal procedural due process?
IE. Did the Court of Common Pleas of Philadelphia
County deprive petitioner of his procedural due process
right to have an opportunity to be heard before being
deprived of his property by sustaining the first set of
preliminary objections of the City of Philadelphia to
petitioner’s petition for appointment of a board of view-
ers and dismissing the petition without specifically giv-
ing petitioner leave to amend his pleading?
il
TABLE OF CONTENTS
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I.
IA.
The Supreme Court of Pennsylvania, the
Commonwealth Court of Pennsylvania and
the Court of Common Pleas of Philadelphia
County Through Their Interpretation of the
Right and Ability of a Litigant to Amend
Pleadings Under the Pennsylvania Rules of
Civil Procedure and/or the Eminent Domain
Code of the Commonwealth of Pennsylvania,
or by Denial of Review Thereof, Conflicted
with Federal Procedural Due Process, De-
prived Petitioner of His Procedural Due Pro-
cess Rights Under the Fifth and Fourteenth
Amendments of the Federal Constitution and
Potentially Deprived All Litigants in the Com-
monwealth of Pennsylvania of Their Proce-
dural Due Process Rights Under the Federal
Constitution so that Certiorari is Warranted ..
The State Courts of Pennsylvania Deprived
Petitioner of His Due Process Right to be
Heard When the Appellate Court of Pennsyl-
vania Overruled the Trial Court and Decided
that Petitioner had No Right to Amend His
Pleading Despite the Fact that Petitioner’s
Initial Pleading, Which Stated a Cause of
ill
IB.
IC.
ID.
IE.
TABLE OF CONTENTS — (Continued)
Page
Action, Was Filed Within the Applicable Stat-
ute of Limitations and Was Subsequently
Dismissed at a Preliminary Levei After the
Statute of Limitations had Expired by an
Order of Court Which was Silent as to
FEET ETE E EE PERE RCCL CREEL
The Supreme Court of Pennsylvania De-
prived Petitioner of His Procedural Due Fro-
cess Rights Under the Federal Constitution
by Denying Petitioner’s Petition for Allow-
ance of Appeal from the Order of the Com-
monwealth Court of Pennsylvania, which Pe-
tition raised the Federal Question of the
Denial of Petitioner's Due Process Rights...
The Commonwealth Court of Pennsylvania
Deprived Petitioner of His Procedural Due
Process Rights Under the Federal Constitu-
tion by Unconstitutionally Engaging in Leg-
islative Rulemaking and by Improperly Pro-
mulgating a New Statute or Rule Pertaining
to Amendment of Petitions for the Appoint-
ment of a Board of Viewers and by Enforcing
Fe, PEPE CPU EPET TT ULOT TTT REe Te
The Commonwealth Court of Pennsylvania
Deprived Petitioner of His Procedural Due
Process Rights Under the Federal Constitu-
tion Through Its Interpretation of the Penn-
sylvania Rules of Civil Procedure with Re-
gard to Amendment of Pleadings, Which
Interpretation Conflicted with Federal Proce-
TIE TE Is v0 5 kc Ska dea scndenasen
The Court of Common Pleas of Philadelphia
County Deprived Petitioner of His Procedural
Due Process Right to Have an Opportunity to
iV
16
17
19
TABLE OF CONTENTS — (Continued)
Page
be Heard Before Being Deprived of His Prop-
erty by Sustaining the First Set of Prelim-
inary Objections of the City of Philadelphia to
His Petition for Appointment of a Board of
Viewers and Dismissing the Petition without
Specifically Giving Petitioner Leave to
ASHOMG FE PUOOGIIE oo cos vvescesaseunees 22
COMEDRROR . x. os snack catice civ teceeen eee 24
Appendix
Order of the Supreme Court of Pennsylvania
Entered October 30, 1989 Denying Peti-
tioner’s Petition for Allowance of Appeal .. A-1
Order of the Superior Court of Pennsylvania
Entered August 31, 1988 Sua Sponte
Transferring the Appeal to the Common-
wealth Court of Pennsylvania............ A-2
Opinion of the Commonwealth Court of Penn-
syivania filed June Z, 1969 ... 26 00650065 A-3
Order of the Commonwealth Court of Pennsyl-
vania Entered June 2, 1989 reversing the
Court of Common Pleas of Philadelphia
County Insofar as It Denied the City’s Post-
Trial Motions and Affirming the Trial Court
Insofar as it Denied Petitioner’s Post-Trial
WENGE 0s oes cura cesses ena anen see A-11
Opinion of the Court of Common Pleas of
Philadelphia County Dated June 27, 1988
and Entered July 1, 1966 2.3... c..ecerss A-12
Order of the Court of Common Pleas of Phila-
delphia County Dated May 9, 1988 and En-
tered May 17, 1988 entering Judgment on
the Court’s Verdict of March 15, 1988... A-20
TABLE OF CONTENTS — (Continued)
Page
Order of the Court of Common Pleas of Phila-
delphia County Dated May 5, 1988 Deny-
ing Post-Trial Motions of all Parties ..... A-21
Order of the Court of Common Pleas of Phila-
delphia County Entered September 26,
1986 Denying Motion for Summary Judg-
ment of Additional Defendant, Leonard H.
ROO, DNs ov akin hou CSG RRR UR A-22
Order of the Court of Common Pleas of Phila-
delphia County Dated April 28, 1981 and
Entered May 1, 1981 Dismissing the Pre-
OOM. scan dhe wee ane a eek ee eeekenee as A-23
Order of the Court of Common Pleas of Phila-
delphia County Dated September 17, 1980
and Entered October 4, 1980 Sustaining
the Preliminary Objections of the City of
Philadelphia and Dismissing Petitioner's
Petition for Appointment of a Board of
Wee sca a vastanat vince eee A-24
isu: GEE, CUE, Bk ka evi esa eee A-25
re, Caen. OR Bo ee oo oc cca we kane ene eee A-25
Fe; Oe. Wh: Ee so kas cae A-25
28 U.S.C.A. §1257a (West Supp. 1989) ..... A-26
Eminent Domain Code, Pa. Statz tit. 26, $1-406
fg RR Prerwerrrnr r A-26
Eminent Domain Code, Pa. Stat. tit. 26, §1-502
fg RR eee rer A-27
Eminent Domain Code, Pa. Stat. tit. 26, §1-504
fe ee Peer ee A-29
Pa. RR, EAU. BR. Ts i xe ies eee A-30
a
TABLE OF CONTENTS — (Continued)
Page
a Fess Ok bc ase ew ke ow ee eeene A-31
gS Re re ree re ee A-31
Petition for Allowance of Appeal in the Supreme
Court of Pennsylvania (Pertinent Parts
Raising Federal Question).............. A-32
Vil
TABLE OF AUTHORITIES
Cases: Page
Bata v. Central Penn National Bank of Philadel-
phia, 448 Pa. 355, 293 A.2d 343 (1972) ...... 19
Byard F. Brogan, Inc. v. Holmes Electric Protective
Company of Philadelphia, 501 Pa. 234, 460
Pe bk e | errr ee eee eee 13
Chicago, Burlington and Quincy Railroad Com-
pt ee gs re 15
Commonwealth of Pennsylvania v. Derry Town-
ship, Westmoreland Township, et al., 10 Pa.
Cmwilth. 619, 314 A.2d 874 (1973). .......... 10
Commonwealth of Pennsylvania ex rel Magrini v.
Magrini, 263 Pa. Super. 374, 398 A.2d 179
POE ae eer er re a re ee 15
Commonwealth of Pennsylvania v. Schmuck,
___. Pa. Super. ___., 561 A.2d 1263 (1989) .. 18
Conner v. Allegheny General Hospital, 501 Pa. 306,
Ee Ga IE RR RK a ARON AA wOKS SODAS ORs 14
DelTurco, et al. v. Peoples Home Savings Associa-
tion, 329 Pa. Super. 258, 478 A.2d 456
REN rs eee ra ree ey ear ee etre ere 14
Fuentes v. Shevin, 407 U.S. 67 (1972)......... | ae
Harley Davidson Motor Co., Inc. v. Hartman, 296
Pa. Super. 37, 442 A.2d 284 (1982).... 19, 20, 22
In Re Tax Claim Bureau, German Township, Mt.
Sterling 54//2 Acres, Miscellaneous Buildings,
496 Pa. 46, 436 A.2d 144 (1981).......... 4, 82
Joy v. Daniels, 479 F.2d 1236 (4th Cir. 1973)..... 16
Lawrence, et al v. State Tax Commission of Missis-
Se CP. BIE COPD oko cheese esc caves 16
McKay v. Beatty, 348 Pa. 286, 35 A.2d 264 (1944) 12
Vill
TABLE OF AUTHORITIES — (Continued)
Cases: Page
Moore v. McComsey, 313 Pa. Super. 264, 459 A.2d
Ue CRONE 6 6i0'o 5 UN 5 4 tance MALEK OES AREUES 11
Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972) 16
Morello v. James, 810 F.2d 344 (2d Cir. 1987).... 15
Otto v. American Mutual Insurance Company, 482
Pa. Did, BIS ADO GIO CATE) so vc cc ccscses 19, 22
Patton v. Republic Steel Corporation, 342 Pa. Su-
per. 101, 492 A.20 411 CISES). .. ww cc cnnences 18
Pennsylvania Agricultural Cooperative Marketing
Association v. Ezra Martin Co., 495 F. Supp.
Sa Cars PU RS 6 cee ee edh ekeee ees 18
Pomerantz v. Goldstein, 479 Pa. 175, 387 A.2d 1280
| Ie er et er ee Aes 11, 32
Scoet v. McNeal, 154 U.S. 34 (1893) 6 6. ccccasns 15
Sinking Fund Commissioners of Philadelphia v.
Philadelphia, 324 Pa. 129, 188 A. 314 (1936) 16
Sunbeam Coal Corporation v. Pennsylvania Game
Commission, 37 Pa. Cmwlth. 469, 391 A.2d 29
8h Pry ee err Te re ry rr rg a 17
Super Tire Engineering Company v. McCorkle, 550
Fe SU Ce Ra Pe nk 5s ones ech basaes 16
Ulakovic v. Metropolitan Life Insurance Company,
Joo Pa. 574, IS A.e 41 CPG). 2. vices sascs 11
Wilson v. Howard Johnson Restaurant, 421 Pa.
Gao, BAF Fee OO CRE Bo 808 60 846s base eas 19
CONSTITUTIONAL PROVISIONS, STATUTES,
RULES AND OTHER AUTHORITIES
Jes Ge, ME ns on ot oa a ee eae s aw ok 3, 13
ix
TABLE OF AUTHORITIES — (Continued)
Constitutional Provisions, Statutes, Rules
and Other Authorities Page
OT ek ee 4: Ge @. 23°55: Be
U.S. Const. amend. XIV, §1........ 2, 6,9 13, 13, 23
Oe TO CO A nt Pa hae Oe cp
Ps ee ee a UE es vr ae Res cae eec ens a, ba
28 U.S.C.A. §1257a (West Supp. 1989) .......... 2,3
Pa. Stat. tit. 26, §1-406(e) (Purdon Supp. 1989). 3, 18
Pa. Stat. tit. 26, §$1-502(a) (Purdon Supp. 1989).. 3, 7,
10
Pa. Stat. tit. 26, $1-504 (Purdon Supp. 1989). 3, 18, 22
a Oe Pree er reer ay Ady 2) 1D, 20
ge Oe ae er ee re 3, 10
2 ee Re A Ae a re 3, 4, 3,.6, 7, 19, 2a
OTHER AUTHORITIES
2 Goodrich Amram 2d §1033:1-(1976 and Supp.
OE hes Cobden ccee een swans Veen eee abe 19
2 Goodrich Amram 2d §1033:2 (1976 and Supp.
in og PORE CMD RPE Ware SE een ale erate A 19
2 Goodrich Amram 2d §1033:4 (1976 and Supp.
POR b acinar cevt kere et ua canara vere eecaee 19
No.
IN THE
SUPREME COURT OF THE UNITED STATES
January Term, 1990
ALLISTER BARKER,
Plaintiff-Petitioner
U.
CITY OF PHILADELPHIA
and
LEONARD H. DAGIT, INC..
Defendants-Respondents
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF
PENNSYLVANIA, EASTERN DISTRICT
Petitioner, Allister Barker. respectfully pravs that a
writ of certiorari issue to review the order of the Su-
preme Court of Pennsylvania, Eastern District in this
matter.
OPINIONS BELOW
The unreported memorandum opinion of the Com-
monwealth Court of Pennsylvania and the unreported
opinion of the Court of Common Pleas of Philadelphia
County finding in favor of petitioner. entered during the
2
course of the litigation, are reprinted in the appendix
(App.) at App. A-3-A-19.
STATEMENT OF JURISDICTION
The Supreme Court of Pennsylvania, Eastern Dis-
trict denied petitioner’s petition for allowance of appeal
from the order of the Commonwealth Court of Pennsyl-
vania by order dated October 30, 1989 and entered
October 30, 1989.
The jurisdiction of this Court to review the order of
the Supreme Court of Pennsylvania by writ of certiorari
is invoked under 28 U.S.C. §1257(a).
CONSTITUTIONAL PROVISIONS INVOLVED
United States Constitution, amendment five, which
provides:
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury, except in cases
arising in the land or naval forces, or in the Militia,
when in actual service in time of War or public
danger; nor shall any person be subject for the same
offence to be twice put in jeopardy of life or limb; nor
shall be compelled in any criminal case to be a
witness against himself, nor be deprived of life,
liberty, or property, without due process of law; nor
shall private property be taken for public use, with-
out just compensation.
United States Constitution, amendment fourteen,
§1, which provides:
All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens
of the United States and of the State wherein they
reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of
—————
3
citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, with-
out due process of law; nor deny to any person
within its jurisdiction the equal protection of the
laws.
The following pertinent constitutional provisions,
Statutes and rules are reproduced at App. A-25—A-31.
U.S. Const. amend. I
Pa. Const. art. 1, $1
Pa. Const. art. 1, §10
28 U.S.C.A. §1257a (West Supp. 1989)
Pa. Stat. tit. 26, §1-406(e) (Purdon Supp. 1989)
Pa. Stat. tit. 26, §1-502(a) (Purdon Supp. 1989)
Pa. Stat. tit. 26, §1-504 (Purdon Supp. 1989)
Pa. R. Civ. P. 126
Pa. R. Civ. P. 1007
Pa. R. Civ. P. 1033
STATEMENT OF THE CASE
This action was initiated on or about August 24,
1979 by the filing of a petition for the appointment of a
board of viewers in the Court of Common Pleas of
Philadelphia County, which petition was given a court
term and number. The petition averred that on or about
October or November of 1977 the City of Philadelphia
(“City”), while constructing a playground on the City’s
land, by and through its authorized agent, Leonard H.
Dagit, Inc., paved and blacktopped a four by one hun-
dred foot (4° x 100’) portion of petitioner’s land and, in
the course thereof, also caused various items of struc-
tural damage to petitioner’s property.
' On or about February 25, 1980 the City filed pre-
liminary objections to the petition for the appointment of
a board of viewers. Paragraph one of the City’s prelimi-
nary objections stated, in pertinent part, that “the peti-
tion should be dismissed because a de facto taking
4
cannot result from .. . negligent acts. . .”. Paragraph
seventeen of the City’s preliminary objections stated that
“the petition should be dismissed because petitioner
must seek recovery in an action in trespass, not in
eminent domain”. The memorandum of law attached to
the City’s preliminary objections stated, “first, the peti-
tion makes out a cause of action in trespass... thus the
petition makes out a prima facie case in trespass ... the
petition states a cause of action in trespass for damage to
property”. Thus, the City admitted that petitioner had a
cause of action against it.
On or about September 17, 1980, seven months
after the filing of the preliminary objections, Nicholas A.
Cipriani, Judge of the Court of Common Pleas of Phila-
delphia County entered an order sustaining the City’s
preliminary objections and dismissing the petition for
the appointment of a board of viewers. Judge Cipriani’s
order was silent on the issue of amendment and did not
prohibit the filing of an amended pleading. On Septem-
ber 17, 1980 the statute of limitations for a trespass
action had run, same having expired on or about Octo-
ber or November of 1979. After receiving notice of said
order of September 17, 1980 on or about October 15,
1980, petitioner filed on November 5, 1980 both an
amended complaint under the same term and number of
the petition for appointment of a board of viewers and a
notice of appeal from the order of Judge Cipriani. The
filing of the amended complaint is listed first in the
dockets.
On or about November 21, 1980 the City filed
another set of preliminary objections to petitioner’s
pleading. This time the City’s preliminary objections, in
pertinent part, were based upon the fact that under Pa.
R. Civ. P. 1033 petitioner had no permission of the
parties or .eave of court to file an amended complaint;
that the previous order of Judge Cipriani would preclude
filing an amended complaint under the doctrine of res
Judicata and that the action should be barred by the
5
statute of limitations. Despite its filing of preliminary
objections, the City also filed a complaint against addi-
tional defendant, Leonard H. Dagit, Inc., (“Dagit”) on
December 29, 1980. Dagit’s answer, filed on March 9,
1980, did not allege the statute of limitations as a
defense.
Thereafter, on April 27, 1981 petitioner filed a
praecipe to discontinue his superior court appeal of the
September 19, 1980 order of Judge Cipriani sustaining
the City’s first set of preliminary objections to the
petition for the appointment of a board of viewers. The
next day, April 28, 1981, Judge Nicholas Cipriani en-
tered an order rejecting the City’s claims under Pa. R.
Civ. P. 1033, the statute of limitations and res judicata,
and dismissing the preliminary objections of the City to
petitioner’s amended civil action. It is important to note
that Judge Cipriani who dismissed the City’s preliminary
objections to petitioner’s amended civil action was the
same judge who initially sustained the City’s preliminary
objections to the petition for the appointment of a board
of viewers. The City’s answer and new matter did plead
two of the same matters rejected by Judge Cipriani; the
Statute of limitations and Pa. R. Civ. P. 1033 defenses.
On or about December 18, 1985 almost five (5)
years after filing its answer, Dagit filed a motion for
summary judgment raising the statute of limitations for
the first time. This motion further raised Pa. R. Civ. P.
1033 and the fact that the superior court appeal divested
the Court of Common Pleas of Philadelphia County of
jurisdiction. The basis of Dagit’s motion was substan-
tially the same as that advanced by the City in the City’s
preliminary objections, which were previously over-
ruled. On or about September 26, 1986 Judge Paul
Ribner of the Court of Common Pleas of Philadelphia
County entered an order denying Dagit’s motion for
summary judgment.
This matter came to trial before Judge Victor J. .
DiNubile, Jr., also of the Court of Common Pleas of
—
————EEEE————————————
6
Philadelphia County, on March 11, 1988. At the close of
plaintiff's case, the City presented a motion for non-suit.
This motion again raised Pa. R. Civ. P. 1033, the statute
of limitations and the divesting of jurisdiction, all of
which had been previously disposed of by Judges Ci-
priani and Ribner. Additionally, the City’s motion raised,
for the first time, collateral estoppel, which was not
raised in its answer and new matter. This motion was
denied by Judge DiNubile thereby rejecting for the third
time the defenses raised by the City and Dagit, most
importantly the Pa. R. Civ. P. 1033 amendment defense.
Judge DiNubile rendered the verdict on March 15,
1988 in favor of petitioner and against the City in the
amount of Ten Thousand Dollars ($10,000.00) and in
favor of petitioner, and against Dagit in the amount of
Five Thousand Dollars ($5,000.00). Post-trial motions
were timely filed by petitioner, with regard to damages,
and by both defendants. The City’s post-trial motion only
raised the statute of limitations and Pa. R. Civ. P. 1033
issues. Dagit’s post-trial motion raised Pa. R. Civ. P.
1033; statute of limitations; divestiture of jurisdiction;
res judicata and the failure of the court to permit Dagit
to amend its pleading to include the statute of limita-
tions. All post trial motions were denied by Judge
DiNubile on May 5, 1988. On May 9, 1988 Judge
DiNubile signed an order entering judgment on the
verdict of March 15, 1988. A timely appeal of said order
was filed by petitioner and both defendants to the
Superior Court of Pennsylvania. On or about August 31,
1988 the Superior Court entered an order sua sponte
transferring this matter to the Commonwealth Court of
Pennsylvania.
On June 23, 1989 the Commonwealth Court of
Pennsylvania (“Commonwealth Court”) entered an or-
der reversing the Court of Common Pleas of Philadel-
phia County in part insofar as it denied the City’s
post-trial motions and affirming said order insofar as it
Ae hl
Yj
denied petitioner’s post-trial motion. The Common-
wealth Court found that petitioner’s appeal of the trial
court’s original order of September 17, 1980 was not
timely and, therefore, the Court of Common Pleas of
Philadelphia County was not divested of jurisdiction to
accept the amended complaint. The Commonwealth
Court further found, however, that the trial court’s order
of September 17, 1980 became the final judgment of the
court which could not be amended by filing an amended
complaint under any circumstances. The Common-
wealth Court also found that under both Pa. R. Civ. P.
1033 and under section 502(a) of the Eminent Domain
Code leave of court is needed to amend, even though
section 502(a) of the Eminent-Domain Code does not so
State. Finally, the Commonwealth Court found that
leave of court could not be inferred from the fact that the
trial judge who overruled the preliminary objections to
the amended complaint was the same judge who had
sustained the preliminary objections to the original
petition.
Petitioner filed a timely petition for allowance of
appeal with the Supreme Court of Pennsylvania, East-
ern District, on or about June 30, 1989. In his petition
for allowance of appeal petitioner raised the federal
question of the denial of his due process rights by the
Commonwealth Court by its finding that petitioner
could not amend his pleading and by its creating a new
rule or statute pertaining to amendment of petitions for
the appointment of a board of viewers without properly
promulgating it, and enforcing it retroactively. The
pertinent part of the petition for allowance of appeal
which raised the federal questions sought to be reviewed
is in the Appendix at A-32—A-38. On October 30, 1989
the Supreme Court of Pennsylvania denied petitioner’s
petition for allowance of appeal. This timely petition for
the issuance of a writ of certiorari followed.
8
ARGUMENT
I. The Supreme Court of Pennsylvania, the Com-
monwealth Court of Pennsylvania and the Court of
Common Pleas of Philadelphia County through their
interpretation of the right and ability of a litigant to
amend pleadings under the Pennsylvania Rules of Civil
Procedure and/or the Eminent Domain Code of the
Commonwealth of Pennsylvania, or by denial of review
thereof, conflicted with federal procedural due process,
deprived petitioner of his procedural due process rights
under the fifth and fourteenth amendments of the
Federal Constitution and potentially deprived all liti-
gants in the Commonwealth of Pennsylvania of their
procedural due process rights under the Federal Consti-
tution so that certiorari is warranted.
IA. THE STATE COURTS OF PENNSYLVANIA DE-
PRIVED PETITIONER OF HIS DUE PROCESS
RIGHT TO BE HEARD WHEN THE APPELLATE
COURT OF PENNSYLVANIA OVERRULED THE
TRIAL COURT AND DECIDED THAT PETI-
TIONER HAD NO RIGHT TO AMEND HIS
PLEADING DESPITE THE FACT THAT PETI-
TIONER’S INITIAL PLEADING WHICH STATED
A CAUSE OF ACTION WAS FILED WITHIN THE
APPLICABLE STATUTE OF LIMITATIONS AND
WAS SUBSEQUENTLY DISMISSED AT A PRE-
LIMINARY LEVEL AFTER THE STATUTE OF
LIMITATIONS HAD EXPIRED BY AN ORDER
OF COURT WHICH WAS SILENT AS TO AMEND-
MENT.
As a result of the state court actions in this case,
petitioner, through no fault of his own, has been denied
an opportunity to be heard concerning the deprivation of
his property rights. Petitioner came to the United States
of America on July 15, 1947. He served in the United
States Armed Forces for twenty-one (21) months and on
abated
9
March 30, 1953 he became a naturalized citizen of the
United States. Petitioner had great faith in the American
system of justice and turned to that system when the
City of Philadelphia by and through its authorized agent,
Leonard H. Dagit, Inc., paved and blacktopped a four by
one hundred foot (4’ X 100’) portion of petitioner’s land
and caused various items of structural damage to peti-
tioner’s property while constructing a playground on the
City’s land.
Instead of being granted compensation for the neg-
ligent or intentional actions of the City and Dagit,
petitioner has been put out of court without an opportu-
nity to be heard concerning the deprivation of his
property rights. Petitioner, though he does not have
much money, is petitioning this Court for a writ of
certiorari because he believes so strongly in the principle
of his cause and that there is a wrong that must be
righted.
Petitioner should not be turned away from this
Court because he is only one individual. The due process
rights guaranteed by the fifth and fourteenth amend-
ments of the Federal Constitution, which are applicable
to the states under the fourteenth amendment, apply to
each and every individual with the same degree of
importance. The deprivation of one individual’s due
process rights can lead to the deprivation of the due
process rights of other individuals as well. There is the
potential that any litigant in Pennsylvania who files a
pleading within the applicable statute of limitations,
which pleading is thereafter dismissed after the statute
of limitations has expired, with no indication as to
whether the pleading can be amended, can also be
deprived of his or her due process right to be heard, and
his or her property can also be taken without just
compensation.
There is no question that petitioner herein has a
cause of action against defendants-respondents. The
10
City of Philadelphia itself acknowledged in its prelimi-
nary objections to petitioner’s petition for appointment of
a board of viewers that petitioner had a cause of action
against the City in negligence. Moreover, at the trial in
this matter Judge DiNubile found in favor of petitioner
and against the defendant, City of Philadelphia, in the
amount of Ten Thousand Dollars ($10,000.00) and
against the additional defendant, Leonard H. Dagit, Inc.,
in the amount of Five Thousand Dollars ($5,000.00). It
is also undisputed that petitioner’s original pleading
giving the City of Philadelphia notice of the facts con-
Stituting his claim was filed within the applicable statute
of limitations. Petitioner’s initial pleading, a petition for
the appointment of a board of viewers, was authorized by
Pa. Stat. tit. 26, $1-502(a), which specifically stated that
“the condemnee may file a petition requesting the
appointment of viewers. . .”. The Pennsylvania courts
have held that where the legislature has established a
specific procedure, it thereby creates an exception to the
general rule governing the commencement of actions.
The Commonwealth of Pennsylvania v. Derry Township,
West Moreland County, et al, 10 Pa. Cmwlth. 619, 641,
314 A.2d 874, 879 (1973). Thus, since the Eminent
Domain Code establishes a specific procedure for re-
questing a board of viewers, the legislature has thereby
created an exception to Pa. R. Civ. P. 1007, which is the
general rule governing the commencement of actions.
Furthermore, while petitioner’s initial pleading was
labeled a “petition”, it served the same purpose as, and
had the same essential elements of, a complaint. The
petition gave the adverse party, the City of Philadelphia,
notice of the facts constituting the claim against it. The
City of Philadelphia also had the opportunity to respond
to said petition, which it did by way of preliminary
objections. The petition set out in consecutively num-
bered paragraphs, in concise and summary form, the
material factual allegations upon which petitioner’s
cause of action was based, and it specified the relief
1]
sought. The Supreme Court of Pennsylvania has often
held that the Pennsylvania Courts can maintain juris-
diction over an action when the pleading initiating the
action is substantively adequate in all respects, but is
labeled a petition rather than a complaint. Jn Re Tax
Claim Bureau, German Township, Mt. Sterling 54 1/2
Acres, Miscellaneous Buildings, 496 Pa. 46, 49-50, 436
A.2d 144, 146-147 (1981); Pomerantz v. Goldstein, 479
Pa. 175, 178, 387 A.2d 1280, 1281 (1978).
Whether it be called a petition, a complaint or a civil
action, petitioner’s pleading was filed within the appli-
cable two year statute of limitations and said pleading
tolled the statute. The purpose of the statute of limita-
tions is to discourage stale claims and to expedite
litigation. Ulakovic v. Metropolitan Life Insurance Com-
pany, 339 Pa. 571, 575, 16 A.2d 41, 42 (1940); Moore v.
McComsey, 313 Pa. Super. 264, 270, 459 A.2d 841, 844
(1983). Petitioner filed his initial pleading within the
prescribed statutory period and, therefore, complied
with the purpose behind the statute of limitations.
Unfortunately, the order sustaining the City’s pre-
liminary objections and dismissing petitioner’s petition
for appointment of a board of viewers was entered after
the statute of limitations for a trespass action had run
and the order was silent on the issue of amendment.
Under this set of facts, the Commonwealth Court’s
finding in one cursory sentence unsubstantiated by any
citations that the trial court’s order of September 17,
1980 dismissing petitioner’s petition for appointment of
a board of viewers became the final judgment of the
court, Which could not under any circumstances be
amended by filing an amended complaint, effectively
denied petitioner access to the courts and an opportunity
to be heard concerning the deprivation of his property
rights. Potentially any litigant in Pennsylvania could be
similarly deprived of his or her due process rights by this
rigid reading of the Pennsylvania rules which exalts
form over substance and completely disregards the duty
12
of the Pennsylvania courts to liberally construe the
Pennsylvania Rules of Civil Procedure to guarantee
justice and fairness.
Pa. R. Civ. P. 126 provides:
The rules shall be liberally construed to secure the
just... determination of every action or proceeding
to which they are applicable. The court at every
stage of any such action or proceeding may disre-
gard any error or defect of procedure which does not
affect the substantial rights of the parties.
Ironically, instead of disregarding any error or defect of
procedure which did not affect the substantial rights of
the parties, the Commonwealth Court completely disre-
garded Pa. R. Civ. P. 126 and, in doing so, deprived
petitioner of his due process rights. Furthermore, any
litigant in Pennsylvania who timely files a pleading
within the applicable statute of limitations where the
pleading is dismissed after the statute of limitations has
run by an order of the court which is silent on the issue
of amendment, can similarly be deprived of his or her
due process rights as a result of the Commonwealth
Court’s decision, which the Supreme Court of Pennsyl-
vania declined to review.
The Commonwealth Court has inequitably exalted
form over substance in a way that has the potential of
unjustly putting many Pennsylvania litigants, in addi-
tion to petitioner, out of court without a fuil and fair
opportunity to be heard. The Commonwealth Court
decision directly contravenes the mandate of the Su-
preme Court of Pennyslvania that form must not be
exalted over substance and that in the interest of justice
the Pennsylvania Rules of Civil Procedure must be
liberally construed. McKay v. Beatty, 348 Pa. 286-287,
35 A.2d 264, 265 (1944); Im Re Tax Claim Bureau,
German Township, Mt. Sterling 54 1/2 Acres, Miscella-
neous Buildings, 496 Pa. at 49-50, 436 A.2d at 146-147;
Pomerantz v. Goldstein, 479 Pa. at 178, 387 A.2d at
wi htt lh
13
1281. Procedural errors must not be dispositive where
the rules have been substantially complied with and no
prejudice has resulted from a purely technical error. Jd.
The Supreme Court of Pennsylvania has strongly
Stated its commitment to fairness, the substantive merits
of the case and Pa. R. Civ. P. 126:
The trial of a lawsuit is not a sporting event where
the substantive legal issues which precipitate the
action are subordinated to the “rules of the game.” A
lawsuit is a judicial process calculated to resolve
legal disputes in an orderly and fair fashion. It is
imperative that the fairness of the method by which
the resolution is reached not be open to question. A
rule which arbitrarily and automatically requires the
termination of an action in favor of one party and
against the other based upon a non-prejudicial pro-
cedural mis-step, without regard to the substantive
merits and without regard to the reason for the slip,
is inconsistent with the requirement of fairness
demanded by the Pennsylvania Rules of Civil Pro-
cedure. Rule 126 is not a judicial recommendation
which a court may opt to recognize or ignore. Rather
the rule is a statement of the requirement of fairness
and establishes an affirmative duty courts are bound
to follow in applying all procedural rules. ...
Byard F. Brogan, Inc. v. Holmes Electric Protective
Company of Philadelphia, 501 Pa. 234, 240, 460 A.2d
1093, 1096 (1983). The Commonwealth Court failed to
follow the mandate of the Supreme Court of Pennsylva-
nia and failed to apply Pa. R. Civ. P. 126 as it was
required to do. As a result, petitioner is being deprived of
his due process rights under the fifth and fourteenth
amendments of the United States Constitution and
under article I, section I and article I, section 10 of the
Pennsylvania Constitution. If the Commonweaith Court
decision is allowed to stand, many other Pennsylvania
litigants in similar situations will also be deprived of
14 -
their due process rights.
The Commonwealth Court’s decision is particularly
egregious in light of the fact that the very trial judge who
originally dismissed petitioner’s petition for appointment
of a board of viewers let petitioner’s amended complaint
stand by overruling the City’s second set of preliminary
objections to petitioner’s amended pleading. The trial
judge rejected the City’s claims with regard to the
amendment issue as well as with regard to the statute of
limitations and res judicata issues. Furthermore, the
amendment issue was raised again by Dagit in his
motion for summary judgment and was rejected, once
again, by another trial judge. Finally, at the trial of this
matter, which the Commonwealth Court has now ren-
dered a nullity, the trial judge denied a motion for
non-suit by the City which raised, among other issues,
the amendment and the statute of limitations issues.
Judge DiNubile held that the City’s contention that
petitioner's amended complaint created a new cause of
action and was therefore barred by the statute of limita-
tions was without merit. He found that petitioner’s two
pleadings were amplifications of each other and were
both pre”’icated principally upon negligence. Under
Pennsylvania case law it is clear that an amendment will
be allowed after the statute of limitations has run where
it merely amplifies the original cause of action, Conner v.
Allegheny General Hospital, 501 Pa. 306, 310, 461 A.2d
600, 602 (1983), or if the original complaint states a
cause of action which shows that the plaintiff has a legal
right to recover what is claimed in the subsequent
complaint. DelTurco, et al v. Peoples Home Savings
Association, 329 Pa. Super. 258, 274, 478 A.2d 456,
464-465 (1984). Judge DiNubile further held that peti-
tioner should not be precluded from receiving a decision
on the merits because of a mere technical miscaption of
the complaint and his failure to seek court approval to
file it. Judge DiNubile also held that petitioner should
eee
15
not be barred from recovery since amendments to com-
plaints must be liberally permitted. See App. at A-17—-
A-i8.
Thus, three trial orders allowed the amended com-
plaint to stand and at the trial in this matter Judge
DiNubile entered judgment in favor of petitioner and
acknowledged that petitioner was entitled to damages
due to the defendants’ conduct. Despite these findings
and the requirement to fairly and liberally construe the
rules which is set forth in Pa. R. Civ. P. 126 and which
is mandated by the Supreme Court of Pennsylvania, the
Commonwealth Court summarily stated without sub-
Stantiation that once the City’s preliminary objections
were sustained and the complaint was dismissed there
remained nothing to amend. In one simple sentence the
Commonwealth Court rendered ail of the proceedings
between September 17, 1980 and the present time a
nullity and callously shut the courthouse door depriving
petitioner of the opportunity to be heard concerning the
deprivation of his property rights.
Petitioner and all litigants have a constitutional right
of access to the courts under the first amendment and
the Due Process Clauses of the fifth and fourteenth
amendments of the Federal Constitution. Morello v.
James, 810 F.2d 344, 346 (2d Cir. 1987). Procedural due
process requires that parties whose rights are being
affected are entitled to be heard. Fuentes v. Shevin, 407
U.S. 67, 80 (1972). It is fundamental that, before one
can be deprived of a property interest, notice and a
hearing must be provided. Commonwealth of Pennsyl-
vania ex rel Magrini v. Magrini, 263 Pa. Super. 366,
374, 398 A.2d 179, 182 (1979). The fourteenth amend-
ment prohibition aga,nst the state depriving any person
of life, liberty or property without due process of law
refers and encompasses all the instrumentalities of the
state including its judiciary. Chicago, Burlington and
Quincy Railroad Company, 166 U.S. 226, 233 (1897);
Scott v. McNeal, 154 U.S. 34, 35 (1893). State action can
16
result from judicial action. Moose Lodge No. 107 v. Irvis,
407 U.S. 163, 179 (1972); Joy v. Daniels, 479 F.2d 1236,
1238 (4th Cir. 1973). The Courts may not violate the due
process clause through judicial decrees or judgments.
Sinking Fund Corznissioners of Philadelphia v. Phila-
delphia, 324 Pa. 129, 134, 188 A. 314, 317 (1936). Thus,
no order can be made by a court in the enforcement of a
judgment which would take from a litigant substantive
property rights in violation of due process. /d. This,
however, is precisely what the Commonwealth Court of
Pennsylvania did in this case and petitioner strongly and
sincerely urges this Court to issue a writ of certiorari to
review the decision below.
IB. THE SUPREME COURT OF PENNSYLVANIA
DEPRIVED PETITIONER OF HIS PROCE-
DURAL DUE PROCESS RIGHTS UNDER THE
FEDERAL CONSTITUTION BY DENYING PETI-
TIONER’S PETITION FOR ALLOWANCE OF AP-
PEAL FROM THE ORDER OF THE COMMON-
WEALTH COURT OF PENNSYLVANIA, WHICH
PETITION RAISED THE FEDERAL QUESTION
OF THE DENIAL OF PETITIONER’S DUE PRO-
CESS RIGHTS.
Petitioner petitioned the Supreme Court of Pennsyl-
vania for allowance of appeal from the order of the
Commonwealth Court of Pennsylvania. In petitioner’s
petition he raised the federal question of the denial of
petitioner's due process rights. App. at A-32—A-38.
Nonetheless, the Supreme Court of Pennsylvania denied
petitioner's petition for allowance of appeal.
Constitutional rights are denied by the refusal of the
State court to decide the question as well as by an
erroncous decision of it. Lawrence, et al v. State Tax
Commission of Mississippi, 286 U.S. 276, 282 (1932);
Super Tire Engineering Company v. McCorkle, 550 F.2d
903, 907 (3rd Cir. 1977). The denial by the Supreme
FE
17 ~
Court of Pennsylvania to review the order of the Com-
monwealth Court of Pennsylvania was wrong and must
be corrected by this Court.
IC. THE COMMONWEALTH COURT OF PENNSYL-
VANIA DEPRIVED PETITIONER OF HIS PRO-
CEDURAL DUE PROCESS RIGHTS UNDER THE
FEDERAL CONSTITUTION BY UNCONSTITU-
TIONALLY ENGAGING IN LEGISLATIVE
RULEMAKING AND BY IMPROPERLY PRO-
MULGATING A NEW STATUTE OR RULE PER-
TAINING TO AMENDMENT OF PETITIONS FOR
THE APPOINTMENT OF A BOARD OF VIEW-
ERS AND BY ENFORCING IT RETROAC-
TIVELY.
Notice is the most basic requirement of due process.
Fuentes v. Shevin, 407 U.S. at 80. Petitioner was pre-
sented with no notice that he would be retroactively
subject to a judicially created statute or rule requiring
leave of court for amendment of a petition for appoint-
ment of a board of viewers. Moreover, any litigant in
Pennsylvania who seeks to amend a petition for appoint-
ment of a board of viewers could potentially be subject to
this unconstitutional judicial attempt at promulgating
legislation. In its opinion the Commonwealth Court
stated that “an amendment to a Petition to Appoint a
Board of Viewers must be filed with the court’s permis-
sion”. App. at A-8. The Commonwealth Court cited
Sunbeam Coal Corporation v. Pennsylvania Game Com-
mission, 37 Pa. Cmwith. 469, 391 A.2d 29 (1978) and
the Eminent Domain Code in support of this position.
Neither, however, supports this position. The Sunbeam
court did not hold that court permission was required for
amendment; rather, it held that, under the circum-
stances of that case, it was an abuse of discretion or to
permit amendment.
—
18
The Commonwealth Court’s analysis at footnote 6 of
its opinion, which leads it to the conclusion that leave of
court is required to amend a petition to appoint a board
of viewers under the Eminent Domain Code, is simply
wrong. Pa. Stat. tit. 26, §1-406(e) applies to amendment
of the condemnor’s declaration of taking, not to amend-
ment of the condemnee’s petition for the appointment of
a board of viewers which is governed by Pa. Stat. tit. 26,
§1-504. Section 1-406(e) specificaily provides that the
court may allow an amendment or direct the filing of a
more specific declaration of taking with regard to a
condemnor’s declaration of taking. This clause is signif-
icantly absent from section 1-504 which applies to
preliminary objections to a petition to appoint a board of
viewers. It is axiomatic that when the legislature in-
cludes specific language in one section of a statute and
excludes it from another, it should not be implied where
excluded. Pennsylvania Agricultural Cooperative Mar-
keting Association v. Ezra Martin Co., 495 F. Supp. 565
(M.D. Pa. 1980); Patton v. Republic Steel Corporation,
342 Pa. Super. 101, 109, 492 A.2d 411, 415 (1985);
Commonwealth of Pennsylvania v. Schmuck, __ Pa.
Super. ; , 561 A.2d 1263, 1266 (1989). If the
legislature intended for leave of court to be necessary to
amend a petition to appoint a board of viewers it would
have so stated in the statute. To conclude, as the
Commonwealth Court did, that “It, thus, follows that for
purposes of consistency an amendment to a Petition for
the Appointment of Viewers should be permitted with
leave of court”, App. at A-8, is to unconstitutionally
engage in legislative rulemaking to petitioner’s severe
prejudice and detriment. By doing so, the Common-
wealth Court improperly promulgated a statute or rule
requiring court approval of amendments to petitions for
the appointment of a board of viewers, retroactively
applied it and, as a practical matter, threw petitioner out
ot court, the statute of limitations having run by the time
of the ruling on the preliminary objections. Petitioner’s
-
4
19
federal due process rights have clearly been violated by
the Commonwealth Court’s unconstitutional actions
and it is respectfully requested that this court right the
significant wrong done to petitioner.
ID. THE COMMONWEALTH COURT OF PENNSYL-
VANIA DEPRIVED PETITIONER OF HIS PRO-
CEDURAL DUE PROCESS RIGHTS UNDER THE
FEDERAL CONSTITUTION THROUGH ITS IN-
TERPRETATION OF THE PENNSYLVANIA
RULES OF CIVIL PROCEDURE WITH REGARD
TO AMENDMENT OF PLEADINGS, WHICH IN-
TERPRETATION CONFLICTED WITH FED-
ERAL PROCEDURAL DUE PROCESS.
Since the Pennsylvania Rules of Civil Procedure are
instructive and the Eminent Domain Code of the Com-
monwealth of Pennsylvania is silent on the precise issue
of amendment of a petition for appointment of a board of
viewers, reference to Pa. R. Civ. P. 1033 is particularly
appropriate. The Supreme Court of Pennsylvania has
frequently held that amendment to pleadings should be
liberally granted at any stage of the proceedings. Bata v.
Central Penn National Bank of Philadelphia, 448 Pa.
355, 379, 293 A.2d 343, 356 (1972); Wilson v. Howard
Johnson Restaurant, 421 Pa. 455, 460, 219 A.2d 676,
679 (1966); 2 Goodrich Amram 2d §§1033:1), 1033:2,
1033:4 (1976 and Supp. 1989) and the cases cited
therein. Even when a trial court sustains preliminary
objections on their merits it is generally an abuse of
discretion to dismiss a complaint without leave to
amend. Harley Davidson Motor Co., Inc. v. Hartman,
296 Pa. Super. 37, 42, 442 A.2d 284, 286 (1982). The
right to amend should not be withheld where there is
some reasonable possibility that an amendment can be
accomplished successfully. Otto v. American Mutual
Insurance Company, 482 Pa. 202, 205, 393 A.2d 450,
451 (1978).
20
The Commonwealth Court committed error, which
resulted in the deprivation of petitioner’s due process
right to be heard, by finding that once the City’s prelim-
inary objections were sustained and the petition was
dismissed there remained nothing to amend. This find-
ing directly conflicted with the Pennsylvania Rules of
Civil Procedure such as Pa. P. Civ. P. 126, and with the
Pennsylvania law just stated that it is generally an abuse
of discretion to dismiss a complaint without leave to
amend. The Commonwealth Court should have found,
at a minimum, that the trial court’s silence on the issue
of amendment in its order of September 17, 1980
constituted leave to amend because to dismiss the
pleading without leave to amend would be an abuse of
discretion. In Harley Davidson Motor Co. v. Hartman,
supra, the lower court sustained preliminary objections
in the nature of a demurrer and entered an order
dismissing the complaint of Harley Davidson without
leave to amend. The Superior Court of Pennsylvania
held that the trial court abused its discretion in dismiss-
ing the complaint without leave to amend. The Superior
Court stated:
In the event that a demurrer is sustained because a
complaint is defective in stating a cause of action, if
it is evident that the pleading can be cured by
amendment, a court may not enter final judgment,
but must give the pleader an opportunity to file an
amended complaint .... This is not a matter of
discretion with the court but rather a positive duty.
Id. 296 Pa. Super. at 42, 442 A.2d at 286. Here, as in
Hartman, it was an abuse of discretion for the trial court
to dismiss petitioner’s action without leave to amend and
it was error for the Commonwealth Court not to so find.
Without a doubt petitioner had a reasonable possiblity
that amendment could be accomplished successfully in
that the City itself in numerous instances indicated that
he had alleged a cause of action in trespass. Moreover,
21
the trial court ultimately found in petitioner’s favor at the
trial in this matter, which has mow been rendered a
nullity by the Commonwealth Court.
As previously stated, the Commonwealth Court’s
decision is particularly egregious under the facts of this
case where the trial judge who entered the order dis-
missing petitioner’s petition, which order was silent on
the issue of amendment, thereafter rejected the City’s
argument against amendment and entered an order
overruling the City’s preliminary objections. This argu-
ably constituted a direct finding that the first pleading
was properly amended. At the very least, this constituted
leave of court to amend petitioner’s pleading. Addition-
ally, the order of Judge Ribner denying Dagit’s motion
for summary judgment and the order of Judge DiNubile
denying the City’s motion tor non-suit, all of which
pleadings raised the Pa. R. Civ. P. 1033 amendment
defense, implicitly constituted leave of court to amend,
which can be given at any time. The Commonwealth
Court, however, refused to so find.
The Commonwealth Court refused to interpret the
rules fairly and liberally as was its duty to do and, thus,
deprived petitioner of his due process rights to be heard
and denied petitioner ultimate justice. Moreover, other
litigants in Pennsylvania who seek to amend pleadings
once the statute of limitations has run can also be
deprived of their due process rights under the Federal
and the State Constitutions. The Commonwealth
Court’s decision, which the Supreme Court of Pennsyl-
vania declined to review, is wrong, sets unconstitutional
precedent and must be corrected by this Court.
22
IE. THE COURT OF COMMON PLEAS OF PHILA-
DELPHIA COUNTY DEPRIVED PETITIONER
OF HIS PROCEDURAL DUE PROCESS RIGHT
TO HAVE AN OPPORTUNITY TO BE HEARD
BEFORE BEING DEPRIVED OF HIS PROP-
ERTY BY SUSTAINING THE FIRST SET OF
PRELIMINARY OBJECTIONS OF THE CITY OF
PHILADELPHIA TO HIS PETITION FOR AP-
POINTMENT OF A BOARD OF VIEWERS AND
DISMISSING THE PETITION WITHOUT SPE-
CIFICALLY GIVING PETITIONER LEAVE TO
AMEND HIS PLEADING.
As previously set forth, it is generally an abuse of
discretion to dismiss a complaint without leave to amend
even where a trial court sustains preliminary objections
on their merits. Harley Davidson Motor Co. v. Hartman,
296 Pa. Super. at 42, 442 A.2d at 286. Furthermore, the
right to amend should not be withheld where there is
some reasonable possibility that amendment can be
accomplished successfully. Otto v. American Mutual
Insurance Company, 482 Pa. at 205, 393 A.2d at 451.
The Court of Common Pleas of Philadelphia County
abused its discretion by dismissing petitioner’s petition
for appointment of a board of viewers without specifi-
cally giving petitioner leave to amend his pleading.
Clearly there was some reasonable possibility that
amendment could be accomplished successfully since
the City itself in its preliminary objections to the petition
indicated that petitioner had alleged a cause of action in
trespass.
The trial court also failed to comply with Pa. Stat. tit.
26, $1-504, which provides in pertinent part: “The Court
shall determine promptly all preliminary objections and
make such orders and decrees as justice shall require”.
The trial court failed to make its determination until
seven (7) months after the preliminary objections of the
City had been filed. This can hardly be considered
rene tae
23
prompt. Moreover, and most importantly, by failing to
specifically give petitioner leave to amend his pleading,
the trial court failed to make such an order as justice
required because, according to the Commonwealth
Court decision, the trial court’s order sustaining the
City’s preliminary objections and dismissing petitioner’s
petition without specifically giving petitioner leave to
amend threw petitioner out of Court. This is so despite
the fact that petitioner clearly had a cause of action
against the City as admitted by the City and as can be
seen from the judgment in petitioner’s favor at the trial
in this matter.
As a result of the interpretations of the Court of
Common Pleas of Philadelphia County and the Com-
monwealth Court of Pennsylvania with regard to the
right and ability to amend pleadings under the Pennsyl-
vania Rules of Civil Procedure and the Eminent Domain
Code of the Commonwealth of Pennsylvania, which
interpretations conflicted with federal procedural due
process, and the refusal of the Supreme Court of Penn-
sylvania to review same, petitioner was deprived of his
right to due process guaranteed under the fifth and
fourteenth amendments of the Federal Constitution.
The intent of the founding fathers in creating the
Bill of Rights and the Constitution was to protect against
abuses where a government entity, such as the City of
Philadelphia, commits an admitted wrong and citizens
have no redress. The purpose of the Due Process Clause
and the court system is to prevent social and individual
injustices resulting from unequal economic and political
power. Here petitioner, a lone individual, has been
steamrolled by the local government entity and by the
courts. Petitioner, however, is more than a mere individ-
ual; he is a symbol for a principle which dates back to
the founding of this country, the right to own property
and not to be deprived of it without due process of law.
Petitioner turns to this Court to protect and defend his
right to due process guaranteed by the Constitution of
24
the United States. It is, therefore, strongly urged that
this Court right the significant wrong done to petitioner
and grant his Petition for Writ of Certiorari.
CONCLUSION
For the foregoing reasons, petitioner, Allister
Barker, respectfully requests that this Petition for Writ of
Certiorari be granted.
Respectfully submitted,
BY: “ tes Dy oho
MARTIN B. PITKOW
Counsel of Record
ALVIN FREIBERG
DAVID B. COMROE
GLENN F. HING
REBECCA M. LANDES
ROBERT J. WILSON
Counsel for Petitioner
1700 Market Street
Suite 1400
Philadelphia, Pennsylvania 19103
(215) 568-0400
January 29, 1990
APPENDIX
\
Supreme Court of Pennsylvania
Eastern District
November 1, 1989
Robert J. Wilson, Esquire
LIPMAN, FREIBERG, COMROE & HING
1700 Market Street, Suite 1400
Philadelphia, Pennsylvania 19103
RE: Allister Barker, Petitioner v. Leonard H. Dagit, et al
No. 0612 E.D. Allocatur Docket 1989
Dear Mr. Wilson:
This is to advise you that the following order has
been endorsed on your Petition for Allowance of Appeal
filed in the above captioned matter:
“October 30, 1989.
Petition Denied.
Per Curiam.”
Very truly yours,
Patrick Tassos
Deputy Prothonotary
aw
cc: Hon. Victor J. DiNuile, Jr.
Alan C. Ostron, Esquire
Wayne Partheheimer, Esquire
A-1
A-2
ALLISTER BARKER IN THE
SUPERIOR COURT
OF PENNSYLVANIA
Vv.
CITY OF PHILADELPHIA and: No. 1530 Philadelphia, 1988
LEONARD H. DAGIT, INC. : No. 1911 Philadelphia, 1988
No. 1941 Philadelphia, 1988
: (C.P. 3448 August Term, 1979)
ORDER
AND NOW, this 31st day of August, 1988, these
appeals, together with all pending motions and papers,
are transferred sua sponte to the Commonwealth Court
pursuant to 42 Pa.C.S. §762(a)(7).
BY THE COURT:
ki a
A TE A Ay, st
so
A-3
ALLISTER BARKER
Appellant
v.
CITY OF PHILADELPHIA and
LEONARD H. DAGIT, INC.
Appeilees
ALLISTER BARKER,
v.
CITY OF PHILADELPHIA and
LEONARD H. DAGIT, INC.
CITY OF PHILADELPHIA,
Appellant
BEFORE: HONORABLE JOSEPH T. DOYLE, Judge
HONORABLE MADALINE PALLADINO
Judge
IN THE
COMMONWEALTH
COURT
OF PENNSYLVANIA
NO. 55 T.D. 1988
NO. 57 T.D. 1988
HONORABLE ALEXANDER F. BAR-
BIERI, Senior Judge
ARGUED: MARCH 10, 1989
OPINION NOT REPORTED
A-4
MEMORANDUM OPINION
BY JUDGE DOYLE FILED: June 2, 1989
These are cross appeals from an order of the Court of
Common Pleas of Philadelphia County which denied the
post-trial motions of the City of Philadelphia (City),
Leonard H. Dagit, Inc. (Dagit) (respectively defendant
and additional defendant below) and Allister Barker
(Barker).
This case is fraught with procedural problems
which we must, unfortunately, detail. The lawsuit began
in August 1979 when Barker filed a “Petition for the
Appointment of a Board of Viewers.” The petition alleged
that the City, by and through its agent, Dagit, while
paving and renovating a playground, paved over and
blacktopped a four foot by one hundred foot portion of
Barker's land, which was contiguous to the playground,
and, in addition, caused structural damage to a building
on Barker's property. Barker alleged that these actions
constituted a de facto taking of his property and sought
appointment of a Board of Viewers for purposes of
assessing damages. The City filed preliminary objec-
tions to the petition contending that the petition should
be dismissed because a de facto taking cannot result
from negligent acts and further contending that Barker
must seek recovery in a trespass action. Barker filed an
answer to the preliminary objections contending, inter
alia, that he had not pled negligence, (and, hence, his
case was not one sounding in trespass) and that he had
pled a cause of action in eminent domain. On September
17, 1980 the trial court sustained the preliminary objec-
tions and dismissed the petition. That order, although
signed by Judge Cipriani on September 17, 1980, was
not entered on the docket until October 4, 1980,' and
1. The thirty day appeal period begins to run when the order
has been docketed in the lower court. See Pa. R.A.P. 903(a) and Pa.
R.A.P. 301(a).
eee — A n—e- Stes =@ ie ~
A-5
was silent as to whether Barker could amend the peti-
tion. On November 5, 1980 Barker did two things: (1) he
appealed the September 17 order to the Superior Court?
and he filed what purported to be an “amended com-
plaint’ with the common pleas court. We note that on
the notice of appeal filed with the Superior Court, there
appears the legend “appeal expiration date Nov. 3,
1980.” Moreover, the “amended complaint” was filed
under the same term and docket number as the original
petition but was captioned “Amended Complaint in
Trespass and Equity.” This two count complaint again
pled that in October or November 1977 Barker’s prop-
erty had been partially paved and his building damaged.
In Count One, denominated “Trespass,” Barker claimed
that the City’s actions had been negligent and he sought
money damages of $587,160.00. In Count Two, denom-
inated “Equity,” Barker averred that no remedy at law
existed and yet sought the identical amount of money
damages as in Count One plus a court order directing
the City to remove the blacktop on Barker’s property,
restore his building, and install a fence on the perimeter
line.
The City again filed preliminary objections this time
asserting, inter alia, (1) that Barker had violated the
Pennsylvania Rules of Civil Procedure by “amending”
his “complaint” without leave of court, (2) that the
appeal to the Superior Court had divested the lower
2. Appellate jurisdiction was actually with this Court. See
Section 762 of the Judicial Code, 42 Pa. C.S. §762.
3. We note that the authorities appear to be in dispute as to
whether an equity count can be joined with a law count in the same
complaint. See Standard Pennsylvania Practice 2d, $80:5 (1983) (no
joinder of causes of action permitted); Raw v. Lehnert, 238 Pa.
Superior Ct. 324, 329-30 n.3, 357 A.2d 574, 576 n.3 (1976) (cause
of action for contract recision and restitution is inconsistent with
request for damages due to breach and may not be maintained at
same time in separate counts); but see Goodrich-Amram 2d §1508:1
(1977) (joinder of equitable and law claims may be permitted under
Pa. R.C.P. No. 1508).
A-6
court of jurisdiction and (3) that the two year statute of
limitations applicable to a cause of action in trespass had
already run.4
Barker then filed a praecipe to discontinue his
appeal to the Superior Court. While he alleges in his
brief that he filed the praecipe on April 27, 1981 (and the
trial court so found), our review of the record discloses
that the evidence of record reflects that the praecipe was
filed May 1, 1981 and that there is absolutely no
evidence at all to support the April 27 date. This point is
significant because on April 28, 1981, the trial court
dismissed the preliminary objections filed in response to
the “amended complaint” and the City argues, inter
alia, that pursuant to Pa. R.A.P. 1701(a) the trial court
had no authority to rule on the “amended complaint”
while the Superior Court had jurisdiction of the case on
appeal.
Once the preliminary objections were overruled, the
City filed an answer with new matter and again raised
the statute of limitations defense. The case went to trial.
At the close of Barker’s case, the City moved for a
nonsuit which was denied. On March 15, 1988, the
court entered a verdict against the City in the amount of
$10,000.00, and against Dagit for $5,000.00. All parties
filed post-trial motions (Barker alleged that the damages
were insufficient) which were denied by order dated
May 9, 1988.
The parties then appealed the denial of post-trial
relief to the Superior Court which transferred the matter
to this Court. The City contends that (1) the lower court
erred in entering judgment on the “amended complaint”
because it was filed without leave of court or consent of
the opposing party, (2) the lower court was divested of
4. The City also filed a complaint against Dagit as an additional
defendant. Dagit was thus involved in this case when it went to
trial. It appealed the denial of its post-trial motions to this Court at
56 T.D. 1988, but its appeal was dismissed by this Court because of
its failure to comply with an order of this Court.
—
”" .
A-7
jurisdiction to act upon the “amended complaint” be-
cause the appeal to the Superior Court was still pending,
(3) the lower court erred in entering judgment on the
“amended complaint” because that complaint stated a
new cause of action and the statute of limitations had
run and (4) the lower court erred in entering judgment
on the “amended complaint” because the entry of such
judgment was barred by the doctrine of res judicata.
Barker cross-appeals contending that the trial court
erred in its assessment of damages. As previously noted,
see supra note 3, Dagit also appealed to this Court and
its appeal was dismissed.
We first consider whether the lower court was
divested of jurisdiction when an appeal was taken to the
Superior Court.’ It is clear that pursuant to Pa. R.A.P.
1701(a) a trial court is divested of jurisdiction (except for
certain technical matters not relevant here) where an
appeal is taken. We observe, however, although the
parties have not, that the appeal to the Superior Court
was untimely. The September 17 order was docketed
October 4, 1980, and pursuant to Pa. R.A.P. 902(a), the
appeal had to be taken within thirty days of that date,
i.e., the last day for filing a timely appeal would have
been November 3, 1980, a Monday. And, of course, the
time period for appeal goes to the subject matter juris-
diction of the court. Altieri v. Pennsylvania Board of
Probation and Parole, 88 Pa. Commonwealth Ct. 592,
495 A.2d 213 (1985). Thus, the Superior Court never
acquired jurisdiction over the original appeal. Therefore,
technically, the lower court was not divested cf jurisdic-
tion to accept the “amended complaint” but, what is also
apparent and of considerable importance is that the trial
5. Barker contends that the City did not preserve this issue for
review because it was not raised in post-trial motions. We view the
issue as being subject matter jurisdictional in nature; hence, it can
never be waived. Civil Service Commission of the Borough of Jim
Thorpe v. Kuhn, 85 Pa. Commonwealth Ct. 85, 480 A.2d 1327
(1984).
A-8
court’s order of September 17, 1989, became the final
Judgment of the court which could not under any
circumstances be “amended” by filing an amended
“complaint.” There was simply no longer any viable
“complaint” to amend. The City’s argument, therefore,
that the court should not have permitted the amend-
ment, is somewhat askew, but its position that the filing
of the amended complaint was legally in error, is quite
correct.
Even if we were to consider the City’s argument that
Barker violated Pa. R.C.P. No. 1033, however, by filing
the amended complaint without leave of court or without
consent of the City, we would be compelled to decide in
its favor. We recognize that the Petition to Appcint the
Board of Viewers was filed in eminent domain and the
Pennsylvania Rules of Civil Procedure are inapplicable
to eminent domain matters, although they are consid-
ered instructive. Hall v. Middletown Township Dela-
ware County Sewer Authority, 75 Pa. Commonwealth
Ct. 181, 461 A.2d 899 (1983). We further note, however,
that an amendment to a Petition to Appoint a Board of
Viewers must be filed with the court’s permission. See,
e.g, Sunbeam Coal Corp. v. Pennsylvania Game Commis-
ston, 37 Pa. Commonwealth Ct. 469, 391 A.2d (1978);
see also Sections 406(e), 502(a) and 504 of the Eminent
Domain Code.®
Although, under the theory argued by the City, the
City does not argue procedure under the Eminent
Domain Code (in light of its position that the cause of
action is really one in trespass to which the Pennsylvania
Rules of Civil Procedure would apply and because the
6. Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26
P.S. §§1-406(e), 1-502(a) and 1-504. Under Section 406(e) the
condemnor with the court’s permission may amend a declaration of
taking. Under Section 504 objections to a Petition for Appointment
of Viewers may be filed. It, thus, follows that for purposes of
consistency an amendment to a Petition for the Appointment of
Viewers should be permitted with leave of court.
~ — Te eo
— > Ns
i eS
Pe eee eae
A-9
“amended complaint” sought to assert a cause of action
in trespass), we shall overlook this technical point be-
cause we believe that in either case, under either Rule
1033 or Section 502(a) of the Eminent Domain Code,’
leave of court is needed. See Sunbeam. Barker asserts
that the lower court’s leave can be inferred because (1)
the trial court overruled the preliminary objections to the
“amended complaint” and (2) the trial judge who over-
ruled the preliminary objections was the same one who
had sustained the preliminary objections to the original
petition. We refuse to accept such an argument; it is
dangerous precedent to suggest that leave of court can
be inferred. Even if, however, we were to permit such an
inference the result would be the same. This is so
because once the preliminary objections were sustained
and the complaint was dismissed there remained noth-
ing to “amend” even if the litigation had not been
terminated by the final judgment entered on October 4,
1980. And, of course, it had been terminated in any
event.
Thus, having concluded that the dismissal of the
first complaint was not timely appealed, we must hold
that the trial court committed error in denying the City’s
post-trial motions.®
7. 26 P.S. §1-502(a).
8. Our disposition of this case renders it unnecessary to
consider the merits of Barker’s cross-appeal as to the City. Further,
we need not remand for reassessment of damages against Dagit
because the verdict was not assessed against the defendants as joint
tortfeasers and Barker waived this point by failing in his post-trial
motion to ask the trial court to mold the verdict.
A-10
Based upon the foregoing opinion, we reverse in part
and affirm in part.
Senior Judge Barbieri concurs in the result.
A-11
ALLISTER BARKER
Appellant
v
CITY OF PHILADELPHIA and
LEONARD H. DAGIT, INC.
Appeliees
IN THE
COMMONWEALTH
COURT
OF PENNSYLVANIA
NO. 55 T.D. 1988
I WN Se Pe et lie SE A
he
ALLISTER BARKER,
v.
CITY OF PHILADELPHIA and
LEONARD H. DAGIT, INC.
CITY OF PHILADELPHIA,
Appellant : NO. 57 T.D. 1988
ORDER
NOW, June 2, 1989, the order of the Court of
Common Pleas of Philadelphia County is reversed inso-
far as it is denied the City’s post-trial motions and
affirmed insofar as it denied Barker’s post-trial motion.
- Doyle, Jfmige
CERTIFIED FROM THE
RECORD
AND ORDER EXIT
June 2, 1989
Deputy Prothonotary-Chief Clerk
A-12
ALLISTER BARKER : COURT OF COMMON PLEAS
PHILADELPHIA COUNTY
VS. AUGUST TERM, 1979
CITY OF PHILADELPHIA and : NO. 3448
LEONARD H. DAGIT, INC.
OPINION
BY: DiNUBILE, JR., J.
This case involves appeals resulting from verdicts
and subsequent judgments in favor of plaintiff against
the defendant, City of Philadelphia, in the amount of
$10,000.00, and the additional defendant, Leonard H.
Dagit, Inc., in the amount of $5,000.00, rising from a
non-jury trial before this court on March 11th, March
14th — March 15, 1988. Post trial motions were timely
filed by all parties. A hearing on these motions was held
on May 3, 1988 and all were denied on May 5, 1988.
Judgments subsequently were entered on these ver-
dicts. This appeal follows. Plaintiff asserts that the
court’s measure of damages was inadequate. The defen-
dants argue that Plaintiff's claim is barred by the statute
of limitations.
The facts, as-found by this court and contained in its
findings of fact and conclusions of law, can be stated
briefly as follows. The plaintiff, Mr. Barker, is the owner
of premises 1535 West Clearfield Street, located in the
North Philadelphia section of the City. He purchased
this property in 1970 for $8,000.00. Its present assessed
value is $9,400.00 with a fair market value, according to
City Appraisers as of 1988, of $29,400.00. Sometime in
1975, the defendant, City of Philadelphia, contracted
with the additional defendant, Leonard H. Dagit, Inc., to
erect a playground on the property directly East of and
adjacent to plaintiffs premises. Shortly thereafter, the
additional defendant hired a subcontractor to do certain
rane re ey at
A-13
excavation work in preparation for the laying of cement
in the construction of the playground. The subcontrac-
tor did not perform the excavation properly; by either
negligently shoring the front part of the plaintiffs party
wall and or by improperly backfilling it. During the
course of the excavation, there also may have been some
direct impact to the plaintiffs East wall by machines
operated by the additional defendant’s subcontractor.
The City of Philadelphia, although not in control of the
excavation, did have inspectors on the scene weekly.
The City failed to detect the improper work of the
subcontractor hired by the additional defendant.
The East wall of the plaintiffs property, commenc-
ing on Clearfield Street, formed a party line with the
adjacent playground property. However, approximately
100 feet of the back portion of the plaintiff's property was
not a party wall. A four foot strip just East of plaintiffs
building wall was actually part of his property. Although
there was some ambiguity in the various plans concern-
ing ownership, the City knowingly ordered the paving
over of the 100 by four foot section during the course of
the erection of the playground. In addition, a concrete
rise which formed a part of the back portion of the
playground was erected and attached near the end or
rear portion of plaintiffs East wall. It extended back a
number of feet further, adding to the encroachment
upon the plaintiffs property.
The plaintiff asserts that the damages awarded by
this court were inadequate and not supported by the
record. The plaintiff presented expert testimony con-
cerning damages to his property. It was predicated
principally upon the cost of reconstruction by restoring
the building to a perfect condition. The total amount of
this estimate, based on today’s prices, was approximately
$126,000.00. The court found tite defendant City liable
for the paving over of the four ®y 100 foot strip as well for
the erection of the raised portion of the playground
attached to the plaintiffs East wall and for its failure,
A-14
through its inspectors, to detect and arrest the negligent
excavation of the subcontractor. It is equally clear that
the additional defendant who hired the subcontractor
was liable for the improper work performed and cannot
absolve itself from liability merely because it employed
another firm to do the work. However, the plaintiff failed
to meet its burden of proof in establishing that his
measure of damages are what he asserts on this appeal.
This court found that the paving over of the four by 100
foot strip, although a trespass, resulted in minimal
damages to the plaintiff. In fact, there was evidence that
it actually may have increased the value of his property
since the strip, which was originally dirt, became paved.
Unquestionably, the plaintiff was entitled to damages for
the erection of the rise portion of the playground pres-
ently encroaching upon his property. As a result of this
construction, the plaintiff is now precluded from using
that part covered by this rise. For example, Mr. Barker
cannot erect a side fire door on that portion of his East
wall. Since it would be impracticable for the City to
demolish the playground rise, the plaintiff must be
compensated. In addition, both the City and the addi-
tional defendant Dagit must pay for the subcontractor’s
improper excavation which damaged the front part of
the plaintiffs property. Although Dagit must share the
major burden of this responsibility, the City was liable as
well for failure to properly inspect and arrest the negli-
gent conduct of the subcontractor.
Plaintiff asserts that the measure of damages should
be the diminution of the value of his property as a result
of defendants’ liability. However, the plaintiff had failed
to prove by a fair preponderance of the evidence that any
such diminution actually occurred. The plaintiff main-
tains that he met this burden by way of his own
testimony in which he stated that properties in the area
had sold for approximately $50,000.00 to $55,000.00.
The court did not accept his self-serving hearsay state-
ments as to valuation which were totally uncorroborated
did
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A-15
in the record. The plaintiff alternatively argues that
another possible measure of damages, as testified by his
expert, is the cost ($126,000.00) of restoration of the
building to a perfect condition. However, this sum
cannot be a valid measure of damages when it is far in
excess of the market value of the property. It represents
an expenditure which might be made if the value of the
real estate were exceedingly higher and the enterprise to
be conducted on the property would be of such a nature
that the income generated from it would justify such an
outlay of money. The property had been used as an auto
repair shop housed in what was basically a two story
garage. There is no evidence on the record that the
expenditure of the sum suggested by the expert would
in any way justify the intended use of the property by the
plaintiff, namely, for the purpose of conducting state
auto inspections.
The court awarded damages based on the dictates of
the case of PennDot v. Crea, 483 A.2d 996 (1984) which
states that where the cost of restoration of the property to
its former condition is equal to or greater than the actual
value of the property, then the measure of damages is
the actual market value of the property immediately
prior to the injury or, in this case, the market value of the
plaintiffs property in 1975-1977. Using this method, the
court arrived at the sum of $15,000.00. The only objec-
tive evidence presented as to the value of the property
was the fact that the plaintiff purchased it for $8,000.00
in 1970. Today, according to the City Assessors, it is
worth close to $30,000.00. Consequently, a fair estimate
of its value in 1975-1977 would approximate
$15,000.00.
An alternative approach of fixing a monetary value
on the various intrusions upon the plaintiffs property
leads to a similar result. An award can be made specif-
ically for the actual intrusion of the playground rise, cost
to shore up the front part of the property to be added to
the sum of $3,100.00 already expended by the plaintiff
A-16
for this purpose, and the approximate sum of $15,000.00
is reached by this method as well. Consequently, the
plaintiffs contention that the damages awarded are
insufficient is without merit.
Both the defendant and additional defendant have
filed a cross appeal alleging that the trial court erred in
not overruling previous orders of the Court of Common
Pleas in which plaintiffs amended complaint was per-
mitted. They assert that this amendment had the effect
of changing the cause of action subsequent to the
running of the statute of limitations and is therefore
barred. The court disagreed with this contention. In
order to understand the nature of this argument, it is
necessary to state briefly the convoluted pre-trial history
of this case. The alleged acts contained in both the
original as well as the amended complaint occurred in
October or November, 1977. The plaintiff instituted
eminent domain proceedings in that he petitioned for
the appointment of a Board of View against the City of
Philadelphia in August 1979, alleging basically a negli-
gent confiscation of the 100 by four foot strip of property
and other damages previously referred to in this Opin-
ion. The defendant City promptly filed preliminary ob-
jections alleging that no cause of action could arise in
eminent domain based upon a negligent taking. The
City’s preliminary objections were sustained on or about
11/5/80. Thereafter, the plaintiff filed a timely appeal to
the Superior Court. In addition, he amended his com-
plaint without leave of court alleging the within cause of
action based upon negligence and seeking certain equi-
table relief not inconsistent with his original petition for
the appointment of a Board of Viewers. The City filed
preliminary objections to the plaintiffs amended com-
plaint on the grounds that the assertions contained in it
constituted a new cause of action and consequently was
barred by the statute of limitations and the appeal to the
Superior Court divested the Common Pleas Court of
jurisdiction. In addition, the City asserted that there was
A-17
no leave of court to file this amended complaint. These
preliminary objections to the plaintiffs amended com-
plaint were filed on 11/21/80. On 12/29/80, the City also
filed a complaint against the additional defendant. On
/27/81, the plaintiff discontinued its appeal to Superior
Court on the eminent domain matter. On April 28, 1981,
the Court of Common Pleas overruled the City’s prelim-
inary objections to the plaintiffs amended complaint.
The City then filed an answer to the amended complaint
alleging the statute of limitations as a defense.
On 12/18/85, the additional defendant filed a motion
for summary judgment arguing for the first time that the
action against it was barred by the statute of limitations.
It also asserted in this motion, as the City had done in its
preliminary objections, that the appeal to the Superior
Court divested the Common Pleas Court of Philadelphia
of jurisdiction. It never in its pleadings raised nor
pleaded the defense of the statute. Its motion for sum-
mary judgment was denied on 9/26/86.
The defendant City’s contention that the amended
complaint created a new cause of action and conse-
quently is barred by the statute of limitations is without
merit. Case law is clear that an amendment will be
allowed after the statute of limitations has run where it
merely amplifies the original cause of action, Connor v.
Allegheny General Hospital, 461 A.2d 600 (1983) or if
the original complaint states a cause of action showing
that the plaintiff has a legal right to recover what is
claimed in the subsequent complaint. DelTurco et al. v.
Peoples Home Savings Association, 478 A.2d 456
(1984). In this case, the original cause of action under
eminent domain as well as the subsequent amendment
were mere amplifications of each other. They both were
predicated principally upon negligence. The plaintiff, in
his original complaint, merely misnamed the cause of
action. He should not be precluded from receiving a
decision on the merits merely because of a technical
miscaption of the complaint and his failure to seek court
A-18
approval to file it. Since amendments to complaints must
be liberally permitted, plaintiff should not be barred from
recovery. See DelTurco et al. v. Peoples Home Savings
Association, supra.; Connor v. Allegheny General Hos-
pital, supra.; Harley Davidson Motor Co., Inc. v. Hart-
man, 442 A.2d 284 (1982). The instant case is clearly
distinguishable from Saracina v. Cotoia, 417 Pa. 80, 208
A.2d 764 (1965) and Boarts v. McCord, 511 A.2d 204
(1986) cited by the defendants. In Saracina, the amend-
ment was disallowed by a majority of the court because
the plaintiff had sued a different party (the father
instead of the son). In McCord, the plaintiff had sued in
the original complaint to recover under wrongful death
and survival actions for the still born delivery of their
child. After preliminary objections were sustained, the
plaintiff then filed an amended complaint seeking neg-
ligent infliction of emotional distress and loss of consor-
tium resulting therefrom. Since no recovery could have
been obtained under Pennsylvania law for negligent
infliction of emotional distress, the amendment was
disallowed. In the instant case, the amendment did not
seek to change the party as it did in Saracina. Unlike
McCord, in both the original miscaptioned complaint
and its amendment, the plaintiff alleged facts which
were actionable, namely, the negligent taking and dam-
age to his property.
Defendants also make an additional argument. They
assert that the Common Pleas Court was divested of its
jurisdiction at the time of the sustaining of the amended
complaint because of the plaintiffs appeal to the Supe-
rior Court. At the time of the appeal, the plaintiff also
filed his amended complaint with the Common Pleas
Court and later discontinued this appeal. In view of
these circumstances, it is difficult to see how jurisdic-
tion was divested. In any event, it would be draconian to
deny plaintiff's right to recovery based on such a highly
technical argument.
A-19
The additional defendant further objects to the trial
court's refusal to permit an amendment to its complaint
at trial alleging the statute of limitations as a defense.
The additional defendant was joined in December of
1980. It never raised the statute of limitations in its
pleadings. The defense was raised for the first time in a
motion for summary judgment on 12/18/85. Clearly
under these facts, this objection was waived. Rule 1030
Pa. R. Civ. Pro., see also Tanner v. AllState Insurance,
467 A.2d 1164 (1983). This case discusses in depth
when an amendment should be permitted. A long un-
explained delay between the original complaint and the
filing of the motion to amend can operate as a waiver. In
this case, there was never any motion to amend filed
until done so orally at trial; well over seven years after
the additional defendant was joined. The defense was
first raised by way of summary judgment five years after
joinder. Unquestionably, there is a waiver here. This
situation is unlike Tanner, where the amendment alleg-
ing the statute of limitations was promptly filed a little
less than six months after the original filing. The instant
case is much more analagous to Commonwealth v.
PennDot v. Bethlehem Steel Corporation, 404 A.2d 692
(1979), where the motion was disallowed because it was
made two years and five months after the original
pleading.
BY THE COURT: \) r
DiNUBILE, JR., J.
DATED: June 27, 1988
A-20
IN THE COURT OF COMMON PLEAS
OF PHILADELPHIA COUNTY
TRIAL DIVISION
ALLISTER BARKER : AUGUST TERM, 1979
VS.
CITY OF PHILADELPHIA
and :
LEONARD H. DAGIT, INC. : NO. 3448
ORDER
AND NOW, this 9th day of May, 1988, after post
trial motions have been denied, judgment is entered on
the Court’s verdict of March 15, 1988.
BY THE COURT:
sh.
DiNUBILE, JR.., J.
A-21
IN THE COURT OF COMMON PLEAS
OF PHILADELPHIA COUNTY
TRIAL DIVISION
ALLISTER BARKER : AUGUST TERM, 1979
vs.
CITY OF PHILADELPHIA
and :
LEONARD H. DAGIT, INC. : NO. 3448
ORDER
AND NOW, this 5th day of May, 1988, after a
hearing was held on May 3, 1988, the post trial motions
of all parties are hereby denied.
BY THE COURT:
VW.
DiNUBILE, JR.., J.
A-22
ALLISTER BARKER COURT OF
COMMON PLEAS
VS. ~ OF PHILADELPHIA
: COUNTY
THE CITY OF PHILADELPHIA :
and : NO. 3448
LEONARD H. DAGIT, INC. : AUGUST TERM, 1979
ORDER
AND NOW, this 26th day of September, 1986, upon
consideration of the Motion for Summary Judgement
submitted by Additional Defendant, Leonard H. Dagit, -
Inc., and Plaintiffs Answer thereto, it is hereby OR-
DERED AND DECREED that said Motion is DENIED.
BY THE COURT:
<7
eee
\
oe
Paul Ribner, J.
A-23
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
ALLISTER BARKER : AUGUST TERM, 1979
VS.
CITY OF PHILADELPHIA ; NO. 3448
; ORDER
j AND NOW, this 28th day of April, 1981, upon
) consideration of Preliminary Objection of Defendant to
Plaintiffs Amended Complaint, and Answer in opposi-
tion thereto, it is hereby ORDERED AND DECREED
that Preliminary Objections of Defendant are dismissed;
Defendant granted leave to file responsive pleading
| within twenty (20) days of date hereof to Plaintiffs
Amended Complaint in Trespass and Equity.
BY THE COURT:
A-24
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
ALLISTER BARKER : AUGUST TERM, 1979
VS. !
CITY OF PHILADELPHIA : NO. 3448
ORDER
AND NOW, this 17th day of September, 1980, upon
consideration of Preliminary Objections of Defendant,
City of Philadelphia, Answer in opposition thereto, oral
argument and legal memoranda, it is hereby ORDERED
AND DECREED that Preliminary Objections of Defen-
dant, City of Philadelphia, are sustained and Petition for
the Appointment of a Board of Viewers is DISMISSED.
BY THE COURT:
A-25
U.S. Const. amend. I:
AMENDMENT I—FREEDOM OF RELIGION,
SPEECH AND PRESS; PEACEFUL ASSEMBLAGE;
PETITION OF GRIEVANCES
Congress shall make no law respecting an establish-
ment of religion, or prohibiting the free exercise thereof;
or abridging the freedom of speech, or of the press; or
the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.
Pa . Const. art. I, § 1:
§ 1. Inherent rights of mankind
Ali men are born equally free and independent, and
have certain inherent and indefeasible rights, among
which are those of enjoying and defending life and
liberty, of acquiring, possessing and protecting property
and reputation, and of pursuing their own happiness.
Pa. Const. art. I, § 10:
§ 10. Initiation of criminal proceedings; twice in jeopardy;
eminent domain
Except as hereinafter provided no person shall, for
any indictable offense, be proceeded against criminally
by information, except in cases arising in the land or
naval forces, or in the militia, when in actual service, in
time of war or public danger, or by leave of the court for
oppression or misdemeanor in office. Each of the several
courts of common pleas may, with the approval of the
Supreme Court, provide for the initiation of criminal
proceedings therein by information filed in the manner
provided by law. No person shall, for the same offense,
be twice put in jeopardy of life or limb; nor shall private
property be taken or applied to public use, without
authority of law and without just compensation being
first made or secured.
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28 U.S.C.A. § 1257a (West Supp. 1989)
§ 1257. State courts; appeal; certiorari
(a) Final judgments or decrees rendered by the
highest court of a State in which a decision could be had,
may be reviewed by the Supreme Court by writ of
certiorari where the validity of a treaty or statute of the
United States is drawn in question or where the validity
of a statute of any State is drawn in question on the
ground of its being repugnant to the Constitution,
treaties, or laws of the United States, or where any title,
right, privilege, or immunity is specially set up or
claimed under the Constitution or the treaties or statutes
of, or any commission held or authority exercised under,
the United States.
Eminent Domain Code, Pa. Stat. tit. 26, § 1-406 (Purdon
Supp. 1989):
§ 1-406. Preliminary objections.
(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. Preliminary objections shall be limited to and
shall be the exclusive method of challenging (1) the
power or right of the condemnor to appropriate the
condemned property unless the same has been previ-
ously adjudicated; (2) the sufficiency of the security; (3)
any other procedure followed by the condemnor; or (4)
the declaration of taking. Failure to raise these matters
by preliminary objections shall constitute a waiver
thereof.
(b) Preliminary objections shall state specifically
the grounds relied upon.
(c) All preliminary objections shall be raised at one
time and in one pleading. They may be inconsistent.
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(d) The condemnee shall serve a copy of the pre-
liminary objections on the condemnor within seventy-
two hours after filing the same.
(e) The court shall determine promptly all prelimi-
nary objections and make such preliminary and final
orders and decrees as justice shall require, including the
revesting of title. If preliminary objections are finally
sustained, which have the effect of finally terminating
the condemnation, the condemnee shall be entitled to
damages as if the condemnation had been revoked
under section 408, to be assessed as therein provided. If
an issue of fact is raised, the court shall take evidence by
depositions or otherwise. The court may allow amend-
ment or direct the filing of a more specific declaration of
taking.
Eminent Domain Code, Pa. Stat. tit. 26, §1-502 (Purdon
Supp. 1989):
§ 1-502. Petition for the appointment of viewers.
(a) The condemnee may file a petition requesting
the appointment of viewers, setting forth:
(1) A caption which shall be the caption of the
proceeding substantially as set forth in the declara-
tion of taking, with an identification of the petitioner
and his property. The petitioner shall be designated
as the plaintiff. Except as otherwise ordered by the
court, the viewers’ proceedings shall be at the same
court term and number as the declaration of taking.
(2) The date of filing of the declaration of taking
and whether any preliminary objections thereto
have been filed and remain undisposed of.
(3) The name of the condemnor.
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(4) The names and addresses of all condemnees
and mortgagees known to the petitioner to have an
interest in his property and the nature of their
interests.
(5) A brief description of his property which may
include any or all of his properties in the same
county taken, injured or destroyed for the same
purpose by the condemnor, whether by the same or
separate declarations or without a declaration of
taking.
(6) A request for the appointment of viewers to
ascertain just compensation.
(b) The condemnor may file a petition requesting
the appointment of viewers setting forth:
(1) A caption which shall be the caption of the
proceeding substantially as set forth in the declara-
tion of taking, to which shall be added the name ot
the condemnee as plaintiff as to whose property the
petition is filed and the name of the condemnor as
defendant. If there is more than one condemnee it
shall be sufficient to designate the name of the first
condemnee as the plaintiff with appropriate indica-
tion of other condemnees. Except as otherwise
ordered by the court, the viewers’ proceedings shall
be at the same term and number as the declaration
of taking.
(2) The date of the filing of the declaration of
taking and whether any preliminary objections
thereto have been filed and remain undisposed of.
(3) The names and addresses of all condemnees
known to the petitioner to have an interest in the
property which is the subject of the petition and the
nature of their interests.
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(4) A brief description of the property which is
the subject of the petition and the interesi con-
demned.
(5) A request for the appointment of viewers to
ascertain Just compensation.
(c) The condemnor may include in its petition any or
all of the property included in the declaration of taking.
(d) The court appointing the viewers may, on its
own motion or at the request of a party, direct them to
determine the damages for any or all of the properties
included in the declaration of taking or any or all
properties taken, injured or destroyed for the same
purpose by a condemnor without a declaration of taking.
(e) If there has been a compensable injury suffered
and no declaration of taking therefor has been filed, a
condemnee may file a petition for the appointment of
viewers substantially in the form provided for in subsec-
tion (a) of this section, setting forth such injury.
(f) A copy of any petition for the appointment of
viewers filed by a condemnee shall be sent promptly by
registered or certified mail, return receipt requested, to
the adverse party.
(g) The court, in furtherance of convenience or to
avoid prejudice, may on its own motion or on motion of
any party, order separate viewers’ proceedings or trial
when more than one property has been included in the
petition.
Eminent Domain Code, Pa. Stat. tit. 26, §1-504 (Purdon
Supp. 1989):
§$ 1-504. Appointment of viewers; notice; objections
Upon the filing of a petition for the appointment of
viewers, the court, unless preliminary objections to the
validity of the condemnation or jurisdiction, warranting
delay, are pending, shall promptly appoint three viewers,
who shall view the premises, hold hearings, and file a
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report. In counties of the first class, the court may
appoint an alternate viewer in addition to the three
viewers specifically appointed. The prothonotary shall
promptly notify the viewers of their appointment unless
a local rule provides another method of notification.
The viewers shall promptly give written notice by
registered or certified mail, return receipt requested, of
their appointment to all persons named as condemnors
or condemnees in the petition for the appointment of
viewers and of the place and time of the view, which
shall not be less than twenty days from the date of said
notice.
If notice of the view does not include notice of a time
and place of subsequent hearings and a time and place
is not agreed upon by the parties at the view, notice of
the hearing shall be given by not less than ten days’
written notice by registered or certified mail, return
receipt requested.
Any objection to the appointment of viewers not
theretofore waived may be raised by preliminary objec-
tions filed within twenty days after receipt of notice of
the appointment of viewers. Objections to the form of
the petition or the appointment or the qualification of the
viewers are waived unless included in preliminary ob-
jections. The court shall determine promptly all prelim-
inary objections and make such orders and decrees as
justice shall require. If an issue of fact is raised, evi-
dence may be taken by deposition or otherwise as the
court shall direct.
Pa. R. Civ. P. 126:
Rule 126. Liberal Construction and Application of Rules.
The rules shall be liberally construed to secure the
just, speedy and inexpensive determination of every
action or proceeding to which they are applicable. The
court at every stage of any such action or proceeding
may disregard any error or defect of procedure which
does not affect the substantial rights of the parties.
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Pa. R. Civ. P. 1007:
Rule 1007. Commencement of Action
An action may be commenced by filing with the
prothonotary
(1) a praecipe for a writ of summons,
(2) a complaint, or
(3) an agreement for an amicable action.
Pa. R. Civ. P. 1033:
Rule 1033. Amendment
A party, either by filed consent of the adverse party
or by leave of court, may at any time change the form of
action, correct the name of a party or amend his plead-
ing. The amended pleading may aver transactions or
occurrences which have happened before or after the
filing of the original pleading, even though they give rise
to a new cause of action or defense. An amendment may
be made to conform the pleading to the evidence offered
or admitted.
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No. 612 E. D. ALLOC. DKT. 198
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
ALLISTER BARKER,
Petitioner
VS.
CITY OF PHILADELPHIA and
LEONARD H. DAGIT, INC.,
Respondents
PETITION FOR ALLOWANCE OF APPEAL
From the Order of the Commonwealth Court of Penn-
sylvania at Nos. 55 and 57, Transfer Docket, 1988, dated
June 2, 1989, reversing in part and affirming in part the
decree of the Court of Common Pleas of Philadelphia
County dated May 9, 1988
ROBERT J. WILSON ESQUIRE
LIPMAN. FREIBERG, COMROE & HING
1700 Market Street, Suite 1400
Philadelphia, PA 19103
(215) 568-0400
Attorney for Petitioner
A-33
QUESTIONS PRESENTED
1. Whether a Petition for the Appointment of a
Board of View based upon a de facto taking is appropri-
ate where the City and its subcontractor, in building a
City playground, intentionally paved over a portion of the
adjoining land and effectively annexed same to the
City’s playground?
2. Whether Preliminary Objections in the Nature of
a Demurrer are properly sustained without leave to
amend or without the taking of further evidence by
deposition or otherwise where the possibility of estab-
lishing a cause of action exists?
3. Whether the Lower Court violated Petitioners
due process rights by creating a new rule pertaining to
amendment of Petitions for the Appointment of a Board
of View without properly promulgating it and by enforc-
ing it retroactively?
A. Whether Petitioner received, directly or implic-
itly, leave of Court to amend his pleadings?
3. The Lower Court violated Petitioner's due pro-
cess rights by creating a new rule pertaining to amend-
ment of Petitions for the Appointment of a Board of
View without properly promulgating same and by en-
forcing it retroactively.
Notice is the most basic requirement of due process.
Fuentes v. Shevin, 407 U.S. 67 (1972). “Parties whose
rights are to be affected are entitled to be heard and in
order that they may enjoy that right they must first be
notified” (Citations omitted). Goss v. Lopez, 419 U.S.
565 (1975). The notice provided should be reasonably
calculated to inform interested parties of the pending
action, and should supply the information necessary to
provide an opportunity to present objections. The un-
controverted fact in the instant case is that Petitioner
was presented with no notice that he would be retroac-
tively subject to a judicially created rule requiring leave
of Court for amendment of his pleading.
a
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The Commonwealth Court decision here is particu-
larly odious, and respectfully submitted, erroneous, in its
attempt to promulgate a new procedural rule by judicial
fiat and to retroactively enforce same. Judge Doyle,
speaking for the Court, stated that amendment of a
Petition to Appoint a Board of View requires Court
Permission and cited Sumbeam Coal Corp. vs. Pennsyl-
vania Game Commission, 37 Pa. Cmwlth 469, 391 A.2d
29 (1978) and the Eminent Domain Code. Neither
supports this position. Sunbeam merely states, after
quoting from Jn re Ramsey, 20 Pa. Cmwilth 207, 342
A.2d 124 (1975) (see infra):
Although we recognize that our case law states only
that a lower court can “possibly allow” an amend-
ment of a petition for the appointment of viewers,
thus rendering amendment a discretionary act, we
believe that if ever there was a case in which
amendment should have been permitted, it is this
case. Id. at , 391 A.2d at 33.
In fact in Sunbeam, the Court reversed the lower Courts
sustaining of Preliminary Objections without leave to
amend and permitted amendment. In Sunbeam the
Condemnor alternatively acknowledged it was con-
demning in fee simple and then reversed itself stating it
was merely condemning surface rights only. In Sun-
beam, as in the instant case, where there is a factual
issue, here as to the intent or negligence of the Condem-
nor, the proper disposition of Preliminary Objections is
to permit the taking of depositions or to permit amend-
ment. The Sunbeam Court did not hold that Court
permission was required for amendment, rather, it held
that under the circumstances of that case, it was an
abuse of discretion not to permit amendment.
The Commonwealth Court’s assumption at footnote
six, that leave of Court is required to amend a Petition for
the Appointment of a Board of View is simply wrong.
Section 1 406(e), Act of June 22, 1964, P.L. 84, as
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amended, 26 P.S. §1-406(e), applies to amendment of
the Condemnors Declaration of Taking, not the Con-
demnee’s Petition for the Appointment of a Board of
View which is governed by 26 P.S. §1-504. Section
1-406(e), cited by the Court, pertaining to the Declara-
tion of Taking states, where relevant:
If an issue of fact is raised, the Court shall take
evidence by depositions or otherwise. The Court
may allow amendment or direct the filing of a more
specific declaration of taking.
Significantly, the first sentence of the above is identical
to §1-504, which applies to Preliminary Objections to a
Petition to Appoint Viewers. Just as significant is the
absence of the second sentence above in §1-504. To
conclude, as the Commonwealth Court did, that “it
follows for purposes of consistency [that] an amendment
to a Petition for the Appointment of Viewers should be
permitted with Leave of Court” is simply to engage in
legislative rule-making, to Petitioners severe prejudice
and detriment. By doing so, the Commonwealth Court
promulgated a rule requiring Court approval of amend-
ments to Petitions for the Appointment of View, retroac-
tively applied it and as a practical matter put Petitioner
out of Court, the statute of limitations having run by the
time of the ruling on the Preliminary Objections.
The Commonwealth Court noted that the Appeal to
the Superior Court was late and that therefore jurisdic-
tion remained in the Court of Common Pleas. Petitioner
contends that he discontinued his appeal to the Superior
Court. In either event, jurisdiction was properly with the
Court of Common Pleas. Under these circumstances
where an action has been timely file d with the possibility
that the statute of limitations would expire if a new
action would have to be commenced, and with the 1983
amendment resulting in litigation being generally
termed “Civil Action” instead of separate forms of action,
it would be inappropriate and a miscarriage of justice to
A-36
say to Mr. Barker, “you lose — we do not like the form of
your Original action, you are out of Court and you are out
of time for a new action.”
Since the Pennsylvania Rules of Civil Procedure are
instructive and the Eminent Domain Code is silent on
the precise issue of amendment of a Petition to Appoint
Viewers, reference to Pa. R.C.P. 1033 is particularly
appropriate.
In Harley Davidson Motor Co., Inc. vs. Hartman,
296 Pa. Super. 37, 442 A.2d 284 (1982) the lower court
sustained Preliminary Objections in the nature of a
demurrer and dismissed the Complaint of Harley David-
son and entered and Order dismissing the Complaint
without leave to amend. In holding that the trial Court
abused its discretion in dismissing the Complaint with-
out leave to amend the Superior Court stated:
Even where a trial Court sustains Preliminary Ob-
jections on their merits, it is generally an abuse of
discretion to dismiss a Complaint without leave to
amend... the right to amend should not be withheld
where there is some reasonable possibility that
amendment can be accomplished successfully. (em-
phasis added) Ort vs. American Mutual Insurance
Company, 482 Pa. 202, 205, 393 A.2d 450 451
(1978). “In the event a demurrer is sustained be-
cause a Complaint is defective in stating a cause of
action, if it is evident that the pleading can be cured
by amendment, a Court may not enter final judg-
ment, but must give the pleader an opportunity to
file an Amended Complaint... This is not a matter
of discretion with the Court but rather a positive
duty.” Framlau Corporation vs. County of Dela-
ware, 223 Pa. Superior Ct. 272, 276, 299 A.2d 335,
337 (1972). See Also: Longo vs. Rago, 287 Pa.
Superior Ct. 509. 510, 430 A.2d 1006, 1007 (1981);
Mace vs. Senior Adult Activities Center of Montgom-
ery County, 282 Pa. Superior Ct. 5666, 567, 423
A-37
A.2d 390, 391 (1980); Itri vs. Lewis, 281 Pa. Supe-
rior Ct. 521, 524, 422 A.2d 591, 593 (1980); Mellon
Bank, N.A. vs. Joseph, 267 Pa. Superior Ct. 307, 312
406 A.2d 1055, 1057 (1979); 2 Goodrich-Amram,
Standard Pa. Practice §1028(3):2 and §1017(b): 11.
Id. at , 442 A.2d at 286.
-
Here, as in Hartman, it would have been an abuse of
discretion for Judge Cipriani to dismiss Plaintiffs action
without leave to amend. Without a doubt Allister Barker
“had some reasonable possibility that amendment can
be accomplished successfully” in that the City itself in
numerous instances indicated that he had alleged a
cause of action in trespass.
Appellant, City of Philadelphia has also attempted to
find support for its argument in Pa. R.C.P. 1033. Pa.
R.C.P. 1033 provides in pertinent part:
A party, either by filed consent of the adverse party
or by leave of court, may at any time .. . amend his
pleading...
Here, Allister Barker amended his pleading since, in
accordance with Hartman, he had “some reasonable
possibility that amendment can be accomplished suc-
cessfully”. Parenthetically, although the City now is
strenuously objecting, Mr. Barker is merely following
the City’s original “suggestion” contained in it Prelimi-
nary Objections to the Petition for the Appointment of a
Board of View in pursuing an action in trespass.
Under these circumstances, given the fact that
there is no provision governing amendment in the
Eminent Domain Code, and under the above authority it
was error and an abuse of discretion to sustain the
Preliminary Objections to the Petition without leave to
amend.
A. Petitioner received, directly or implicitly, leave
of Court to amend his pleadings.
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Alternatively, leave to amend was given either im-
plicitly or directly give by three (3) Orders. The City’s
Preliminary Objections to the Amended Complain. spe-
cifically raised the instant amendment objection based
on Pa. R.C.P. 1033. Judge Cipriani the same Judge who
sustained the City’s first set of Preliminary Objections
overruled this second set of Preliminary Objections. This
arguably constituted a direct finding that the first plead-
ing was properly amended. At the very least this implic-
itly constituted “leave of court” to amend Plaintiffs
pleading. Likewise, the Order of Judge Ribner denying
Dagit’s Motion for Summary Judgment and the Order of
Judge DiNublie denying the City’s Motion for Non-suit,
all of which raised the Pa. R.C.P. 1033 amendment
defense, all implicitly constituted “leave of court’ to
amend which can be given “at any time’. Once
amended, the Petition should have resulted in the con-
vening of a Board of View and a disposition by that
tribunal.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.