Appeal from the Order of the Court of Common Pleas of Luzerne County in case of Redevelopment Authority of the City of Wilkes-Barre v. Abe Seeherman and Stephen L. Seeherman, Trustees under the Last Will and Testament of Isaac Engel, No. 10307 of 1976.
Hugh F. Mundy, with him Donald D. McFadden, of Flanagan, Doran, Biscontini & Shaffer, for appellant.
Jerome L. Cohen, for appellees.
Judges Mencer, Rogers and Palladino, sitting as a panel of three. Opinion by Judge Mencer. Judge Rogers dissents.
[ 55 Pa. Commw. Page 298]
The Redevelopment Authority of the City of Wilkes-Barre (Authority) has appealed from an order of the Court of Common Pleas of Luzerne County which sustained the preliminary objections of Abe Seeherman and Stephen L. Seeherman (appellees) to a declaration of taking filed by the Authority on October 19, 1976. We affirm.
The facts in this case are undisputed. The property in question is located in the City of Wilkes-Barre between South Franklin Street and Sambourne Street. Prior to August 14, 1974, this tract was bisected by a private easement which connected South Franklin and Sambourne Streets and which was owned in trust by the appellees. In 1973, the Authority was considering the condemnation of the entire tract for redevelopment
[ 55 Pa. Commw. Page 299]
purposes. On March 6, 1973, the appellees informed the Authority of their interest in the tract.
On August 14, 1974, without notice to the appellees, the Authority filed a declaration of taking with respect to the entire tract, pursuant to the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-101 et seq. The owners of the servient estate conveyed their interests to the Authority by deeds dated August 14, 1974 and August 6, 1975 and, as a result, no board of view was appointed. However, at no time did the appellees convey any interest to the Authority.
On September 20, 1976, the Authority conveyed to a private developer (D & D Motors) the portion of the tract fronting on Sambourne Street, having a depth of 89 feet, " subject to existing reservations, easements, restrictions, conditions, etc. " (Emphasis added.) On October 19, 1976, after extensive negotiations over a period of at least two months, the Authority filed a second declaration of taking to condemn the easement interests of the appellees in the tract sold to D & D Motors. The appellees filed preliminary objections, contending that the taking was improper because it was intended to promote private rather than public purposes. The court below sustained the preliminary objections, and this appeal followed.
The parties to this appeal would have us decide whether the 1974 condemnation of the servient estate without notice to the easement holder resulted in the extinguishment of the easement. The decision of the Supreme Court in Curtis v. Redevelopment Authority, 482 Pa. 58, 393 A.2d 377 (1978), would support the view that the easement was terminated in 1974, but Curtis may be distinguishable because there were no notice ...