January Term, 1977 No. 309, Appeal from the Order of the Commonwealth Court at 140 C.D. 1976, dated December 7, 1976 which reversed the Decree of the Court of Common Pleas of Philadelphia County, No. 2679, September Term, 1972.
Arnold H. Rosenberg, Philadelphia, for appellant.
David S. Winston, Paul A. Cohen, Peter A. Galante, Philadelphia, for appellee, Redevelopment Authority.
Samuel Rappaport, Philadelphia, for appellees, William D. Glockner, et al.
O'Brien, Roberts, Pomeroy, Nix, and Larsen, JJ. Eagen, C. J., and Manderino, J., did not participate in the consideration or decision of this case.
This is an appeal*fn1 from the order of the Commonwealth Court of Pennsylvania which reversed the order of the Court of Common Pleas of Philadelphia County sitting en banc. The controlling issue in this case is whether, under all the facts and circumstances, appellant was provided with notice of the taking sufficient to meet the requirements of due process. The Commonwealth Court held that the easement holder, appellant, was deemed to have received constructive notice of a taking by appellee in 1962; therefore, his petition for damages was barred by the six year statute of limitations. Act of June 22, 1964, P.L. 84, Art. V, § 524, 26 P.S. § 1-524 (Supp.1978-79). For the following reasons, the order of the Commonwealth Court is reversed and the case is remanded to the chancellor for a determination of just compensation.
On October 28, 1960, Dewey Lee Curtis, the appellant, was deeded title to a property designated as 229 Pine Street, in Philadelphia. The deed specifically reserved an easement in favor of the property conveyed in and over an alleyway three feet in width running from the rear of the property at 229 Pine Street over an abutting property (220 Delancey Street) to Delancey Street. This easement had been created by deed in 1843, apparently by a common owner.
In June, 1961, Philadelphia's City Council approved an urban renewal plan of the Philadelphia Redevelopment Authority (Authority) which included the property at 220 Delancey Street. Before the plan was approved a public hearing was held thereon and public notice of the hearing was given on three different dates in the three large Philadelphia newspapers of general circulation. Included in these notices was a detailed description of the land included in the plan and a list of the properties (by number and street) which would be condemned. On December 7, 1962, the Authority by resolution authorized acquisition of the property at 220 Delancey Street. On December 26, 1962, condemnation proceedings were begun by the filing of a petition by the Authority for leave to file bond. The petition included a description of the property at 220 Delancey Street by metes and bounds, not by street and number. The petition and the description did not mention or refer to the alleyway or the existence of any easement therein. The chancellor found as a fact that notice of this petition was not given to appellant. However, in a stipulation of facts the parties agreed of record that notice of the filing of the petition was given "in accordance with the then existing rules of service, in an Affidavit of Service of Notice of Petition for Leave to File Bond. . . ." The affidavit-exhibit executed by the Director of the housing division of the Authority stated a copy of the petition was handed to "each owner of the properties indicated . . . ." The property at 220 Delancey Street was eventually condemned by the Authority filing a bond securing the payment of all damages required by law. The servient tenement was posted with notices, but not the dominant tenement.
On April 21, 1966, the Redevelopment Authority conveyed title to 220 Delancey Street to William D. Glockner and wife. In the spring of 1970 the Glockners barred appellant from using the alleyway at 220 Delancey Street. On September 21, 1972, appellant instituted an action in equity naming the Authority and the Glockners as defendants requesting 1) that the Authority be directed to prepare and deliver a new or corrected deed to the Glockners which would specifically reserve appellant's easement in and over the alleyway; and 2) that the Glockners be prohibited from obstructing appellant's use of the alleyway in the future. After an evidentiary hearing the chancellor entered a decree nisi granting all of the relief prayed for. The chancellor ruled that since appellant had not received notice of the condemnation proceedings, the ...