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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA v. COMMONWEALTH PENNSYLVANIA (03/09/79)

decided: March 9, 1979.

IN RE: CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION OF RIGHT OF WAY FOR LEGISLATIVE ROUTE 169, SECTION 28, CLAIM NO. 4004323. REV. CHARLES R. THOMAS AND LAURA THOMAS, HIS WIFE
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT



Appeal from the Order of the Court of Common Pleas of Luzerne County in case of Rev. Charles R. Thomas and Laura Thomas, his wife v. Commonwealth of Pennsylvania, Department of Transportation, No. 6471 of 1974.

COUNSEL

Patrick J. Lavelle, Special Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellant.

E. Charles Coslett, with him Charles R. Coslett, for appellees.

Judges Crumlish, Jr., DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 41 Pa. Commw. Page 170]

The Commonwealth of Pennsylvania, Department of Transportation (PennDOT) appeals the lower court's dismissal of its preliminary objections to a petition for the appointment of viewers filed pursuant to Section 502 of the Eminent Domain Code (Code)*fn1 by the Reverend Charles R. Thomas and his wife, Laura Thomas (Condemnees).

Condemnees petitioned the lower court to appoint viewers on November 9, 1973, alleging that PennDOT had taken, injured or destroyed property they owned in Bear Creek Township, Luzerne County, Pennsylvania, though no declaration of taking had been filed. A Board of Viewers was appointed August 8, 1974. PennDOT filed preliminary objections to the petition in the nature of a demurrer alleging that Condemnees had conveyed an easement to the land in question (approximately .047 acres of unimproved land) by a deed executed and delivered on December 3, 1970, in consideration for which Condemnees received $4,500 as the agreed full settlement.*fn2 Condemnees filed an

[ 41 Pa. Commw. Page 171]

    answer to PennDOT's preliminary objections, admitting that they had executed an agreement of sale and deed of easement but alleging that said deed was procured as a result of fraudulent misrepresentation by a PennDOT employee*fn3 as to whether or not the $4,500 check received was a final complete payment or a preliminary pro tanto payment.*fn4

The trial court dismissed the preliminary objections and submitted the issue of misrepresentation to the Board of Viewers as the trier of fact. An appeal to our Court ensued*fn5 and, acting upon a joint petition to remand filed by the parties herein, we remanded the case on October 28, 1976, for resolution of the factual and legal issues involved.

On remand, the lower court considered depositions taken by the parties and found that the agreement of sale and deed of easement were executed, delivered and recorded by the parties and that Condemnees were paid $4,500 by PennDOT. The court then made two further findings of fact.

[ 41 Pa. Commw. Page 1725]

. That said check was not accepted by the Plaintiffs [Condemnees] as full and complete compensation for ...


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