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LOWRY v. COMMONWEALTH (08/10/71)

decided: August 10, 1971.

LOWRY
v.
COMMONWEALTH



Appeal from the order of the Court of Common Pleas of Luzerne County at No. 1265 December Term, 1965, in case of Esdras H. Lowry and Lynn W. Lowry, his wife v. Commonwealth of Pennsylvania, Department of Transportation.

COUNSEL

Pasco L. Schiavo, for appellant.

Edward D. Werblun, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General and J. Shane Creamer, Attorney General, for appellee.

President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Rogers.

Author: Rogers

[ 2 Pa. Commw. Page 644]

In this eminent domain case the plaintiff, Lynn W. Lowry, a landowner, appeals from a court's entry of judgment for the Commonwealth, the condemnor, notwithstanding a jury verdict for plaintiff.

Esdras H. Lowry*fn1 and Lynn W. Lowry, his wife, owned as tenants by the entirety a house and lot in Sugarloaf Township, Luzerne County, abutting a township

[ 2 Pa. Commw. Page 645]

    road which at plaintiffs' property ran parallel to and very near a state highway, Legislative Route 184. Prior to November 1964, the state, acting by its Department of Highways (now Department of Transportation), proposed widening and relocating Route 184 and in so doing to take a portion of plaintiffs' property because the township road upon which it abutted was to be eliminated by the widening of Route 184. The plaintiffs negotiated with and prevailed upon the Department of Highways to relocate the access road and to place it at the rear of their property, thus avoiding the necessity of taking any of plaintiffs' property. In return, the plaintiffs executed a release dated November 11, 1964 and reading in part as follows: "We . . . owners of property affected by the improvement of a section of road . . . designated . . . Route No. 184 . . . for and in consideration of the benefits resulting from the improvement of the said road, do hereby remise, release, quitclaim and forever discharge the Commonwealth . . . for or on account of any taking, injury, or destruction of property, through or by reason of any improvement of the said road. . . ."

The work done on Route 184 included its elevation by about five feet where it passed plaintiffs' lot. The township road which, as mentioned, abutted their property in front and provided access to Route 184 was covered with fill.

After the work was finished the plaintiffs petitioned for the appointment of viewers, who awarded them damages although the Commonwealth interposed the release as a defense. On appeal to court, counsel stipulated that there should be "a severance of the issues involved . . . and that the issue first to be decided when the matter comes to trial is the validity and legal effect" of the release. The plaintiffs' sole contention was that the release was executed under the alleged mutual mistakes of fact that neither the plaintiffs nor the

[ 2 Pa. Commw. Page 646]

Commonwealth knew when the release was executed, that the work entailed a change of grade, or that the township road would be eliminated.*fn2 The trial judge submitted to the jury for its determination specially the question, "When the release was signed, did the Department of Highways know that the grade would be changed?" The jury answered in the negative and the trial judge directed a verdict in favor of the instant appellant, Mrs. ...


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