25 Pa. Commw. 56 | Pa. Commw. Ct. | 1976
Opinion by
The history of this litigation is almost as complex and certainly as ill-starred as that of the Blue Route by which it was begotten.
It becomes necessary to describe the history in some detail. In 1945 Mr. and Mrs. Smith purchased a lot containing 4.440 acres of land, exclusive of the right-of-way of township road, located in Nether Providence Township. The lot was improved with a two and one-half story frame and stone house, designed by a notable local architect and containing, in
In or before the year 1968 representatives of PennDOT told the Smiths that 1.860 acres of their land, including the portion on which all of the buildings were located, would be required for construction of the Blue Route. In April 1969,
“1. The Commonwealth will condemn the property described in Exhibit A, and the Owner will there
“2. Within sixty (60) days of the execution of this agreement the Commonwealth will pay to the Owner the sum of fifty-seven thousand, five hundred dollars (no cents) ($57,500.00) Dollars, representing the Commonwealth’s estimate of just compensation for said premises. This payment will be made as a payment pro tanto and shall in no way be construed as affecting the Owner’s right to further review by the Commonwealth of the damages the Owner is or may be entitled to receive and without prejudice to the Owner’s right to petition the Courts to assess the amount of such damages.
“3. The Owner will deliver possession of the premises described in Exhibit A attached hereto and agrees that five thousand, seven hundred and fifty dollars (no cents) ($5,750.00) Dollars of the said sum may be withheld by the Commonwealth until possession has been delivered. Prior to delivery of possession the Owner will terminate all leases or other agreements, including but not limited to those relating to outdoor advertising devices, relating to the property described in Exhibit A, where the Owner has the right to do so.
“4. Loss or damage to the property by fire or other casualty shall be at the risk of the Owner until possession of the property has been delivered to the Commonwealth. The Owner may continue to insure the property after possession has been delivered until title has passed to the Commonwealth. If any building (s) are being acquired by the Commonwealth under this agreement, any insurance poliey(ies) on such building(s) shall be amended to provide for payment thereunder (by means of a standard mortgage clause) to the Commonwealth of the amount paid to the Owner under paragraph 2.”
‘ ‘ 1. The Owner will on or before October 31, 1969 remove from the area to be condemned the following buildings:
(a) Single family three story detached residential dwelling.
“2. The Owner agrees:
□ To pay to the Commonwealth at the signing of this agreement the sum of in full consideration of the aforesaid buildings.
lx] To credit against his right of way damage claim the sum of $2,000.00, in full consideration of the aforesaid buildings.
□ To credit against his right of way damage claim the fair market value of the aforesaid buildings as severed from the real estate.
“3. The Owner agrees that $1,000.00 of the monies which shall be due him from the Commonwealth on account of his right of way damage claim shall be withheld by the Commonwealth until the Owner has removed the aforesaid buildings from the condemned area. In the event the Owner shall fail to remove the said buildings by the date specified in Paragraph 1, above, the Owner agrees to deliver possession of the improvements to the Commonwealth, whereupon the Commonwealth shall have the right to
“4. The Owner agrees to assume full responsibility for any and all damages to persons or property which may be caused by him or his agents or employes in the removal of the aforesaid building(s), and to hold the Commonwealth harmless from any liability attributable to such damages. The Owner agrees, further, to require any contractor employed by him to remove the aforesaid building(s) to furnish to the Commonwealth a Certificate of Insurance as required by Highway Specifications Form 4258A.”
In April or May of 1969 the Smiths purchased a new dwelling house. They moved from the Nether Providence Township property on September 1, 1969. On or about September 5, 1969 the parties attended a settlement at the office of a title insurance company at which the Commonwealth paid the title company $57,500 and the title company, after deduction of $2000 as the agreed credit for the dwelling house, and retaining $5750 as escrow for delivery of possession, as provided by the “Agreement (Advance Payment)” and $1000 as provided by the “Building Removal Agreement”, paid the balance to or for the use of the Smiths. Sometime after September 1, 1969, but before October 31, 1969, the Nether Providence residence was badly damaged by fire. In any event, the Smiths at a cost of $3000 had the home demolished and delivered possession of their property in accordance with the April 1969 written agreements.
One other thing happened in September 1969 — the Smiths sold the 2.580 acres not proposed to be condemned by PennDOT for $44,300.
The Smiths’ theory at the Board of View hearing was that although the Declaration of Taking was not filed until March 3,1970, their property should be considered and valued as being in the condition it was when the April 1969 agreements were entered into—
The Board of View rejected PennDOT’s theory and awarded the Smiths $15,000 in general damages. PennDOT appealed the Board of View’s report by the following document:
“And Now, March 13, 1972, the Commonwealth of Pennsylvania, Department of Transportation, does hereby appeal from the Viewers’ Report in the above-entitled case filed March 6, 1972, to No. 2176 Term, 1970 in accordance with the provisions of Act No. 6, Special Sessions, dated June 22, 1964, Article V, Section 516:
“1. The property involved in this action is situate at Legislative Route 1010, Section A-2, Delaware County, Pennsylvania between said stations 161 + 86 to 164 + 9 and 161 + 30 to 162 + 12.
“2. The interest of the condemnee in the aforesaid property is ownership in Fee Simple.
“3. Jury trial is demanded.”
As is apparent, no objections other than an unexpressed objection to the amount of the award to the viewer’s report appeared in PennDOT’s appeal— specifically no objection was made to the Board of View’s express determination that PennDOT had taken land and a residence. Since this case must apparently be tried in the court below, we note that Section 516 of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P. L. 84, as amended, 26 P.S. §1-516, provides that appeals shall set forth objections, if any, to the viewers’ report, other than to the amount
On February 28, 1972, we filed our Opinion and Order in Nelis v. Redevelopment Authority of Allegheny County, 4 Pa. Commonwealth Ct. 533, 287 A. 2d 880 (1972), holding that a landowner wishing to establish that a de facto taking had occurred at some date other than the date of the filing of a Declaration of Taking must file preliminary objections to the Declaration pursuant to Section 406 of the Eminent Domain Code, 26 P.S. §1-406. Smiths’ counsel seems not to have been apprised of this holding until July 1973 when he filed a petition for rule to show cause why his clients should not be allowed to file preliminary objections to the Declaration of Taking filed on March 3, 1970. The purpose of the proposed preliminary objections is to obtain a decision that a de facto taking occurred in April 1969 before the dwelling house and other improvements were removed in compliance with the agreements then made. Section 406 of the Eminent Domain Code, 26 P.S. §1-406, provides that preliminary objections shall be filed within thirty (30) days after service of a notice of condemnation but that the court, upon cause shown, may extend the time for filing’. After hearing, the court below, noting that Nelis was decided more than a year prior to the filing of the petition, discharged the rule and denied the prayer of the petition. The Smiths’ appeal from
The purpose of our recital of the history of the case is to state here that, despite the failure of the Smiths to file preliminary objections to the Declaration of Taking, we discern nothing contrary to law in submitting the case to the jury on the basis that, although the formal taking was on March 3, 1970, the property’s before value should be ascertained with reference to its condition in April 1969, and that we think it should be so submitted. It is clear that by the agreements entered into in April 1969, the parties intended that damages should be so assessed regardless of the date in the future PennDOT might file a Declaration of Taking, including a date after the Smiths, in compliance with those agreements, had removed the dwelling house and after PennDOT, having obtained possession on October 31, 1969, had removed the outbuildings.
Order affirmed.
The name Blue Route was given to that alignment finally chosen by public authorities for a proposed multi-lane super highway link between a point on the Industrial Highway in Delaware County near the Philadelphia International Airport and the Pennsylvania Turnpike at King of Prussia. As inhabitants of southeastern Pennsylvania know, although many properties were acquired and some segments of the highway constructed, the Blue Route more than a decade later remains unfinished and embroiled in controversy.
One of the two documents herein mentioned was acknowledged by the Smiths on April 16, 1969, the other is dated April 21, 1969.
In a final reference to the Eminent Domain Code, we note that it contains no provision for the payment of estimated just com