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MARY D. GOVATOS v. REDEVELOPMENT AUTHORITY COUNTY MONTGOMERY (01/18/74)

decided: January 18, 1974.

MARY D. GOVATOS, APPELLANT,
v.
THE REDEVELOPMENT AUTHORITY OF THE COUNTY OF MONTGOMERY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Mary D. Govatos v. The Redevelopment Authority of the County of Montgomery, No. 72-08934.

COUNSEL

C. Edmund Wells, with him Arthur F. Loeben, Jr., and Wells, Campbell & Wells, for appellant.

Paul D. North, with him Duffy, North, Duffy & Wilson, for appellee.

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

Author: Bowman

[ 11 Pa. Commw. Page 530]

This is an appeal from an order of the Court of Common Pleas of Montgomery County sustaining preliminary objections to a complaint in assumpsit, which complaint alleges a right in the owner of condemned property to delay compensation under Section 611 of the Eminent Domain Code of 1964, Special Sess., June 22, P.L. 84, 26 P.S. ยง 1-611 (Supp. 1973-1974) (hereinafter Code).

Appellee, Redevelopment Authority, filed a declaration of taking of appellant's property on June 3, 1970. A jury of view was appointed and on November 4, 1971, the viewers filed their report and award, assessing appellant property owner's damages at $310,000.00. No appeal was taken therefrom.

In addition to fixing the total damages, the viewers' report contains a statement that pursuant to an agreement between attorneys for both parties the issue of delay compensation would be a matter for settlement or separate litigation. Appellee paid appellant the full amount of the viewers' award on December 3, 1971.

[ 11 Pa. Commw. Page 531]

After negotiations to resolve the issue of delay compensation had failed, appellant filed a complaint in assumpsit in the lower court to which appellee filed preliminary objections in the nature of a motion to strike for want of compliance with procedural rules governing actions in assumpsit, and in the nature of a demurrer for want of stating a cause of action in assumpsit. Appellant then filed preliminary objections to appellee's preliminary objections which, in essence, highlighted the issue of whether assumpsit is a proper form of action to assert a claim for delay compensation.

The lower court, without passing upon this issue, sustained appellee's preliminary objections by reaching and deciding the substantive issue under the law and the facts admitted by the pleadings. It concluded that appellant was not entitled to delay compensation; presumably, regardless of the form of action or proceedings employed to test such a claim.

No purpose would be served and only further expense and delay would be encountered by the parties if we were to remand this case to the lower court for further consideration of this procedural nicety. Having carefully reviewed the admitted facts as disclosed in the pleadings and being of the opinion that the lower court correctly concluded the substantive issue that appellant under those facts is not as a matter of law entitled to delay compensation, we will affirm the lower court. In doing so, however, we express ...


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