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In eminent domain cases, a party may not appeal as a matter of right from a non-final order overruling that party’s preliminary objections to the opponent’s preliminary objections.
In re: Condemnation by the Economy Borough Municipal Authority, (Pa. Cmwlth. 2007).
On January 25, 2006, David and Audrey Gilbert filed a petition for appointment of a board of viewers, alleging a de facto taking of their residential property by the Economy Borough Municipal Authority. A board of viewers was appointed the next day, and the Gilberts mailed the required documents to the Authority. On March 7, 2006, the Authority filed preliminary objections to the Gilberts’ petition for appointment, which led to the Gilberts responding with their preliminary objections, alleging that the Authority filed its objections past the statutory deadline. The trial court overruled the Gilberts’ preliminary objections, stating that the Authority’s preliminary objections were filed in a timely manner. The Gilberts appealed the decision of the trial court, and the Authority subsequently challenged the Commonwealth Court’s jurisdiction to hear the appeal.
The Commonwealth Court has previously ruled that only final orders are appealable, unless otherwise permitted by rule or statute. The Pennsylvania Rules of Appellate Procedure – Rule 311(e) provides such an exception by addressing the right to appellate review of decisions that do not constitute a final order (interlocutory orders) in eminent domain cases. The rule states that an appeal may be taken as of right from an order overruling preliminary objections to a declaration of taking, and from an order overruling preliminary objections to a petition for appointment of a board of viewers.
Commonwealth Court ultimately held that since Rule 311(e) does not specify that an appeal may be taken as of right from an interlocutory order overruling preliminary objections to preliminary objections, as was the case here, it did not have jurisdiction to hear the Gilberts’ appeal.
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