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decided: March 9, 1979.


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.


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 any damages they sustained.

6. That said check was accepted by the Plaintiffs [Condemnees] with a reservation of right to proceed on their claim for damages after the Commonwealth [PennDOT] completed the work around their property and clearly set forth in the letter dated January 15, 1971, which Plaintiffs [Condemnees] sent to the Commonwealth [PennDOT].

On these facts, the lower court concluded that Condemnees were entitled to have a Board of View appointed to assess any further damages due and, for the second time, dismissed PennDOT's preliminary objections. This appeal followed.

On appeal, PennDOT contends that the lower court failed to resolve the threshold legal and factual issues of alleged misrepresentation and that Condemnees' execution of the releases contained in the agreement of sale and deed of easements, as a matter of law, bars any further claim for damages to the same affected area.

Preliminary objections in eminent domain cases serve a broader purpose than in other cases and are appropriate vehicles to resolve legal and factual issues. Perfection Plastics, Inc. Appeal, 28 Pa. Commonwealth Ct. 396, 368 A.2d 917 (1977). PennDOT's objection to the appointment of viewers on the grounds that Condemnees' claim is not compensable was properly raised preliminarily for the lower court's determination

Having subjected the instant releases to strict scrutiny in order to prevent overreaching, we nonetheless hold that they are sufficiently specific to bar recovery by Condemnees. Therefore, in order to make out a legal cause of action by setting aside the written

[ 41 Pa. Commw. Page 173]

    instruments containing the releases, Condemnees must establish by clear, precise and convincing evidence either fraud, duress or deception by PennDOT or a mutual mistake of a material fact by the parties to the instruments. McClelland Appeal, 430 Pa. 284, 242 A.2d 438 (1968); Finsel v. Department of Transportation, 22 Pa. Commonwealth Ct. 474, 349 A.2d 785 (1975); Department of Transportation v. Pruss, 15 Pa. Commonwealth Ct. 573, 329 A.2d 865 (1974).

Although the court below, by dismissing the preliminary objections, apparently determined that a legal cause of action had been stated by Condemnees' petition, its findings of fact do not support its conclusion that the releases are not effective bars to Condemnees' suit for damages under the Code.

Findings of Fact Nos. 5 and 6 merely reflect Condemnees' subjective understanding of the ramifications of their settlement and are not conclusive of whether or not that understanding was induced by any misrepresentations by PennDOT. We reject Condemnees' argument that by dismissing the preliminary objections, the court below has implicitly made the required determination of the essential elements of fraud*fn6 sufficient to nullify the signed releases. We will not infer findings not actually made by the court

[ 41 Pa. Commw. Page 174]

    below. See Monaco v. Department of Transportation, 26 Pa. Commonwealth Ct. 387, 363 A.2d 857 (1976). Nor will we, as a reviewing court, make our own findings of fact since the resolution of conflicts in evidence and determination of the credibility of witnesses in eminent domain cases are properly within the lower court's province. Pennsylvania Game Commission v. Benek, 32 Pa. Commonwealth Ct. 133, 378 A.2d 497 (1977).

Although we regret the necessity of extending this already protracted litigation, we find it necessary to remand this case to the court below in order that explicit findings be made on the issue of alleged misrepresentation. Of course, the court is empowered to take further evidence in deciding factual issues pursuant to Pa. R.C.P. No. 1028(c).

Accordingly, we


And Now, this 9th day of March, 1979, the order of the Court of Common Pleas of Luzerne County dated August 10, 1977, dismissing the preliminary objections of the Commonwealth of Pennsylvania, Department of Transportation, is vacated, and the matter is hereby remanded to that court for explicit findings on the issue of alleged misrepresentations by a PennDOT employe.


Order vacated. Case remanded.

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