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MELVILLE H. SMITH v. COMMONWEALTH PENNSYLVANIA (06/04/76)

decided: June 4, 1976.

MELVILLE H. SMITH, JR. AND MARGARETTA A. H. SMITH, APPELLANTS,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Delaware County in case of Melville H. Smith, Jr., and Margaretta A. H. Smith, husband and wife v. Commonwealth of Pennsylvania, Department of Transportation, No. 2176 of 1970.

COUNSEL

William D. March, for appellant.

Michael L. Brint, Special Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellee.

Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Rogers. Judge Kramer did not participate in the decision in this case.

Author: Rogers

[ 25 Pa. Commw. Page 57]

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.*fn1 There is presently before us the appeal of landowners, Melville H. Smith, Jr. and Margaretta A. Smith, his wife, from an order of the Court of Common Pleas of Delaware County denying a prayer of the petition for leave to file nunc pro tunc preliminary objections to a Declaration of Taking filed by the Commonwealth of Pennsylvania by its Department of Transportation (PennDOT). The landowners say that the lower court abused its discretion by not extending the time for filing preliminary objections.

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

[ 25 Pa. Commw. Page 58]

    addition to common rooms, seven bedrooms, three bathrooms and a powder room, and with two outbuildings, one a horse stable and the other a three car garage. The property was the Smith family residence after 1945; they kept as many as six horses for their personal use; and Mr. Smith conducted two businesses, one a mail order enterprise and the other a banking advisory service, on the property.

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,*fn2 after negotiations, the Smiths executed and delivered to PennDOT two written agreements on forms provided and prepared by the Commonwealth's then Department of Highways, since renamed the Department of Transportation. The first is denominated "Agreement (Advance Payment)" which after reciting that the Smiths own the property affected by the construction of the Blue Route, that the Commonwealth requires a portion thereof, that the parties are unable to agree as to the amount of just compensation due the Smiths, and that the Smiths are "desirous of relinquishing possession . . . and of receiving payment of the Commonwealth's estimate of just compensation, without prejudice to [their] right to further review by the Commonwealth of the damages [they] are or may be entitled to receive and without prejudice to [their] right to petition the courts to assess the amount of such damages," contains the following pertinent operative provisions:

"1. The Commonwealth will condemn the property described in Exhibit A, and the Owner will thereafter

[ 25 Pa. Commw. Page 59]

    execute a confirmatory deed in fee simple covering the said property.

"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 ...


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