Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Dewey Lee Curtis v. Redevelopment Authority of the City of Philadelphia and William D. Glockner and Winifred M. Glockner, No. 2679 September Term, 1972.
Arnold H. Rosenberg, with him David R. Rosenfeld, and Charen, Palitz and Rosenberg, for Curtis.
David S. Winston, Solicitor, with him Peter A. Galante, General Counsel, for Redevelopment Authority of the City of Philadelphia.
Samuel Rappaport, with him Rappaport & Furman, for Glockner.
Judges Mencer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Mencer. Dissenting Opinion by Judge Rogers.
[ 27 Pa. Commw. Page 361]
This case arises on cross appeals brought by the Redevelopment Authority of the City of Philadelphia (Authority) and William D. and Winifred M. Glockner on one side and Dewey Lee Curtis on the other. Curtis commenced this action by bringing a suit in equity against the Glockners and the Authority, seeking to have the Glockners' deed to property located at 220 Delancey Street reformed to reflect the reservation of an easement in favor of Curtis' property over an alleyway 3 feet wide running from the Curtis property over the Glockner property to Delancey Street. The Glockners received their title from the Authority
[ 27 Pa. Commw. Page 362]
which had condemned the previous owner's interest. The Court of Common Pleas of Philadelphia County granted Curtis' request by a decree nisi dated January 30, 1974. Exceptions were filed to this decree by the Glockners and the Authority. On December 30, 1975, the court en banc sustained the exceptions in part and denied them in part. The final order granted Curtis leave to file a petition for viewers nunc pro tunc and tolled the statute of limitations but reversed the trial court's decree requiring reformation of the Glockner deed.
From this order Curtis appeals, alleging, in effect, that his proper remedy is the return of his easement rights rather than fair compensation for his interest. The Authority has appealed, asserting that Curtis' rights were extinguished when the Authority condemned the property and that his failure to take timely action to protect his rights has left him with no remedy.
The parties had entered into a stipulation of facts below which reveals the following chronology. On October 28, 1960, Curtis took title to property known as 229 Pine Street in Philadelphia. The deed included an express easement over the alley in question here, "leading into Delancey Street as and for way [sic] passageway and water course at all times hereafter forever." This easement was created by deed in 1843.
On June 21, 1961, an ordinance of the City Council of Philadelphia approved the Authority's urban renewal plan including the area covered by what is now the Glockner property. The Authority, by resolution dated December 7, 1962, authorized acquisition of the property. On December 10, 1962, condemnation proceedings were begun by a petition for a rule to show cause why the Authority should not have leave ...