Appeal from order of Court of Common Pleas of Bucks County, May T., 1965, No. 522, in case of William B. Levinson et al. v. County of Bucks.
George T. Kelton, with him John Leslie Kilcoyne, and Begley, Carlin, Mandio, Kelton and Popkin, for appellants.
Peter A. Glascott, with him Samuel S. Gray, Jr., for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Dissenting Opinion by Mr. Justice Cohen.
This is an appeal from the order of the Court of Common Pleas of Bucks County, sustaining one of appellee's preliminary objections, on the grounds that plaintiff's action was barred by § 2433 of The County Code, Act of August 9, 1955, P. L. 323, 16 P.S. § 2433.
On September 11, 1962, the Bucks County Board of Commissioners approved a resolution condemning a seven-acre tract of land belonging to appellants. On September 25, 1963, the Commissioners approved the following resolution: "THE COMMISSIONERS, with regard to the Seven (7) Acre Levinson Tract on Oxford Valley Road in Bristol Township, in lieu of further condemnation proceedings, and based upon appraisal figures as submitted to the County, did agree, subject to there being no legal reason for not doing so, to acquire for Park Purposes, for a consideration of Seventy Thousand, ($70,000.00) Dollars, the above mentioned tract. This settlement was agreed to by Mr. Irving Levinson, speaking for Irving and William Levinson." On April 13, 1964, the Commissioners adopted a resolution purporting to rescind the second resolution, and instructing the County Solicitor to enter into further negotiations with appellants. On January 18, 1965, the Commissioners adopted a resolution purporting to rescind the first resolution and to "discontinue
all proceedings taken providing for the said appropriation of said land . . ."
Appellants filed a bill in equity seeking specific performance of the 1963 agreement. Appellee filed several preliminary objections, all but one of which were dismissed by the Chancellor. He sustained the preliminary objection that § 2433 barred the instant action. We believe he erred in sustaining that objection.
Section 2433 provides as follows: "In case the county shall discontinue any proceedings taken providing for the appropriation, injury or destruction of any land, property or materials prior to the entry upon, taking or appropriation thereof and before judgment therein, the said county shall not thereafter be liable to pay any damages which have been or might have been allowed, but all costs upon any such proceedings had thereon shall be paid by the county, together with any actual damages, loss or injury sustained by reason of such proceeding, and the amount of the same may be determined and fixed by the court in which such proceeding was pending." The question before us involves the proper interpretation to be given the word "proceedings". Although we agree with the court below that the question is "not without difficulty," on balance it would appear that the statute contemplates some sort of court action. The section speaks of "proceedings taken . . . before judgment therein", of damages which "have been or might have been allowed", and of costs which may be "determined and fixed by the Court in which such proceeding was pending". More important than the language, which admittedly is not crystal clear, is the purpose of the provision permitting discontinuance. See § 51 of the Statutory Construction Act, Act of May 28, 1937, P. L. 1019, 46 P.S. § 551. That purpose is clearly delineated in the exhaustive opinion of Mr. Justice Simpson in Reinbold v. Commonwealth,
Pa. 33, 179 Atl. 571 (1935), in which all the Pennsylvania cases and many of the leading cases from other jurisdictions dealing with the discontinuance of condemnations are analyzed. Quoting at length from O'Neill v. Freeholders of ...