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REDEVELOPMENT AUTHORITY CITY POTTSVILLE v. MARJORIE F. GALLAGHER (02/28/77)

decided: February 28, 1977.

REDEVELOPMENT AUTHORITY OF THE CITY OF POTTSVILLE, APPELLANT
v.
MARJORIE F. GALLAGHER, A/K/A MARGIE F. GALLAGHER, APPELLEE



Appeal from the Order of the Court of Common Pleas of Schuylkill County in case of Redevelopment Authority of the City of Pottsville v. Marjorie F. Gallagher, a/k/a Margie F. Gallagher, No. S-745 July Term, 1975.

COUNSEL

Cyrus Palmer Dolbin, with him Donald D. Dolbin, for appellant.

Lester Krasno, with him Krasno & Krasno, for appellee.

Judges Kramer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 28 Pa. Commw. Page 646]

The appellee, Mrs. Marjorie F. Gallagher, and the appellant Redevelopment Authority of the City of Pottsville, entered into a writing by which Mrs. Gallagher offered and agreed to sell to the Authority real estate in the City of Pottsville. The agreement provided that the offer should be irrevocable for a period of thirty (30) days from the date of the agreement and should remain in force thereafter until terminated

[ 28 Pa. Commw. Page 647]

    by Mrs. Gallagher, and that if the offer was accepted, the Authority should specify a place and time of closing not more than sixty (60) days after the date of acceptance. The purchase price was to be $24,960. The writing bears a date of acceptance by the Authority of April 9, 1975.

On May 21, 1975, the Authority commenced an action in equity in the Court of Common Pleas of Schuylkill County in which it alleged that Mrs. Gallagher entered into the contract on April 7, 1975; that it, the Authority, executed it on April 9, 1975; that the Authority has been willing to comply with the contract; that Mrs. Gallagher, through her counsel, had notified the Authority that she would not settle for the property, and would not deliver a deed for or convey it; and that Mrs. Gallagher subsequently failed to appear at an unspecified time and place appointed for settlement. The relief asked for is a decree enjoining Mrs. Gallagher from encumbering or conveying the property to others, and an order directing her to convey it to the Authority. The complaint, incident to the relief just mentioned, also requests that Mrs. Gallagher be ordered to accept the consideration fixed in the agreement.

Mrs. Gallagher filed preliminary objections to the complaint on June 6, 1975 which were never disposed of. On March 15, 1976 Mrs. Gallagher filed a petition requesting that the equity complaint be dismissed on the ground that on July 11, 1975 the Authority had filed a Declaration of Taking of her property. The court below treated the petition as a preliminary objection and dismissed the complaint. The Authority has appealed the trial court's order.

The Authority explains its condemnation of the property by the filing of the Declaration of Taking as an action forced on it by a project timetable for getting possession of properties and demolishing buildings,

[ 28 Pa. Commw. Page 648]

    which timetable was stultified by Mrs. Gallagher's assertedly dilatory preliminary objections to its suit for specific performance. The Authority wants to pursue the equity action for the sole purpose of getting a chancellor's order that Mrs. Gallagher's damages ...


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