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SEITZ v. COMMONWEALTH (10/27/72)

decided: October 27, 1972.

SEITZ, ET UX.
v.
COMMONWEALTH



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of John A. Seitz and Anna J. Seitz, his wife v. Commonwealth of Pennsylvania, Department of Highways, No. 70-12574.

COUNSEL

Albert S. Fein, with him Hugh G. Grady and Fein, Criden, Johanson, Dolan & Morrissey, for appellants.

George Bristol, Assistant Attorney General, with him Marie Inyang, Special Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and J. Shane Creamer, Attorney General, for appellee.

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

Author: Wilkinson

[ 6 Pa. Commw. Page 426]

As alleged in the appellants' Petition for Appointment of Board of Viewers, at all times relevant here, they were the owners of a dwelling house and surrounding plot of ground located on Fitzwatertown Road,

[ 6 Pa. Commw. Page 427]

Abington Township, Montgomery County. On September 17, 1963, some of the appellants' land was condemned by the Governor of Pennsylvania approving plans which provided for the physical taking of a certain area of appellants' premises "a widening and an elevation of the grade of said roadway at a point, and redesign of a curve therein immediately in front of said premises."

This part of the road was actually constructed during June, July, and August of 1965. On June 29, 1965, the Commonwealth offered appellants $3,000. The appellants accepted the offer, signed a release, which is part of the record as exhibit "A" of appellee's Petition to Dismiss, and the money was paid on July 21, 1965. The road was completed and opened for public use during July or August of 1965.

The appellants assert their right to additional compensation now on the theory that the $3,000 they received at the time the road was built was to compensate only for the land and not for the consequential damages due to the change in grade and the increase in the speed of the traffic traveling the highway.

The release provides: "(Appellants) do (does) hereby remise, release, quitclaim and forever discharge the Commonwealth and/or any agency or political subdivision thereof, and/or its or their employees or representatives, of and from all suits, damages, claims and demands whatsoever, in law or equity or otherwise, against it or them or any of them, for or on account of any taking, injury or destruction of property, through or by reason of the condemnation and construction of the said highway, including the change of any streams, water courses, drainage or drainage structures or facilities, or through or by reason of the subsequent maintenance thereof according to the standards of the Department of Highways." There is no question that the taking here involved is the same taking covered by the release.

[ 6 Pa. Commw. Page 428]

Not only is there no allegation or evidence that the road was not constructed in accordance with the plans approved by the Governor, indeed there is affirmative undisputed evidence that the ...


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