84 Pa. Commw. 359 | Pa. Commw. Ct. | 1984
Opinion by
Charles J. Sepko (Appellant) appeals a Wayne County Court of Common Pleas order sustaining the preliminary objections of the Pennsylvania Department of Transportation (DOT) to a petition for the
Appellant owned certain property which was condemned under the Pennsylvania Eminent Domain Code
The common pleas court granted DOT’s preliminary objections because a six-year limitation
Appellant asserts that in 1974 he was contacted by a negotiator for DOT. Appellant was ill at the time and had his niece inform the negotiator that Appel
Before the doctrine of estoppel may be invoked to extend the mandatory time limit in this case, Appellant must prove that he was induced to relax his vigilance by some affirmative fraud, deception or concealment of fact. Hauptman v. Department of Transportation, 77 Pa. Commonwealth Ct. 607, 611, 466 A.2d 302, 304 (1983). Appellant further must prove the fraud, deception or concealment of fact by clear, precise and convincing evidence; but the fraud need not be fraud in the strictest sense, that is, inclusive of an intent to deceive, but may be fraud in its broadest sense, that is, inclusive of an unintentional deception. Walters v. Ditzler, 424 Pa. 445, 449, 227 A.2d 833, 835 (1967).
In the instant case, we do not believe Appellant has met his burden. The evidentiary record consists solely of the deposition of Robert D. Hastings, an administrator for DOT. He testified that upon receiving the message from Appellant’s niece, two written requests were submitted through his office in 1974 to DOT’S chief counsel’s office in Harrisburg requesting that viewers’ proceedings be instituted. There was never any response to those requests. Mr. Hastings also stated that Appellant’s responsibility to pursue his claim by filing a petition for the appointment of viewers was explained to him and that he was given DOT’s right-of-way booklet which also
The record before ns thus indicates, at most, that Appellant never received a response to his request for DOT to file a petition for the appointment of viewers. Appellant certainly could not have been deceived into thinking that a petition was filed or would be filed by virtue of the interoffice communication because there is no evidence in the record which indicates that Appellant was aware of that interoffice communication. In any event, it is apparent that Appellant never received any assurance whatsoever by DOT that a petition had been or would be filed by DOT.
Appellant also claims that DOT’S right-of-way manual led him to believe that DOT had filed the petition. The manual, in a chapter entitled “Litigation Procedure”, states that a claim has entered the litigation stage when either the claimant has petitioned for viewers or when DOT’S district office requests that its staff attorney in Harrisburg file a petition for viewers. Assuming, arguendo, that these proceedings were in the litigation stage by virtue of what transpired between DOT’S district office and its counsel, we fail to see how this proves fraud, deception or concealment on the part of DOT which would lull Appellant into inaction. As we have previously noted, there is no evidence which would show that Appellant was ever aware that the district office had made such a request; therefore, whether or not the proceedings were in the litigation stage is irrelevant to a determination of the issue now before us.
Appellant’s illness may account for some delay on his part, but it is apparent that his niece was looking after his interest at some point in time prior to the
In light of the foregoing, we are compelled to conclude that the common pleas court did not abuse its discretion or commit an error of law when it refused to invoke equitable estoppel to extend the statute of limitations.
Order
The order of the Common Pleas Court of Wayne County, No. 8 June Term, 1972, dated June 8, 1983, is affirmed.
Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P,S. §1-101 et seq.
26 P.S. §1-524, repealed by Section 2(a) of the Act of April 28, 1978, P.L. 202. At the time Appellant petitioned for the appointment of viewers, a similar provision appeared in Section 5527 (4) of the Judicial Code, 42 Pa. O. S. §5527(4). Subsequently, this section was amended and now appears as Section 5526(4) of the Judicial Code, 42 Pa. O. S. §5526(4) which provides a five year limitation.
Captline v. County of Allegheny, 74 Pa. Commonwealth Ct. 85, 89, 459 A.2d 1298, 1300 (1983).