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COMMONWEALTH PENNSYLVANIA v. LIMESTONE PRODUCTS & SUPPLY COMPANY (02/28/83)

decided: February 28, 1983.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT
v.
LIMESTONE PRODUCTS & SUPPLY COMPANY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of In Re: Petition of Limestone Products & Supply Company for the Appointment of Viewers to determine the damages to its property in the Township of South Fayette, County of Allegheny, Commonwealth of Pennsylvania, by reason of improvements of Legislative Route 1338, Section 1R/W, a limited access highway, in South Fayette Township; Limestone Products & Supply Company v. Commonwealth of Pennsylvania, Department of Transportation, No. 1717 October Term, 1971.

COUNSEL

Michael J. Creighton, Assistant Counsel, with him Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.

William P. Bresnahan, O'Donnell, Bresnahan & Caputo, for appellee.

Judges Blatt, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Craig. Dissenting Opinion by Judge Blatt.

Author: Craig

[ 72 Pa. Commw. Page 361]

The Pennsylvania Department of Transportation (DOT) appeals here from an order of the Court of Common Pleas of Allegheny County enforcing a settlement agreement between the Commonwealth and Limestone Products & Supply Company (Limestone). We affirm.*fn1

This case began with DOT's condemnation of Limestone's property on August 17, 1971. When the Allegheny County Board of Viewers filed its report in January, 1978, estimating the damages caused by the condemnation at $60,000, the Commonwealth appealed. When the appeal was scheduled for trial and a jury had been selected, there were negotiations between

[ 72 Pa. Commw. Page 362]

    the two parties, and Limestone now relies upon a settlement agreement then reached in Judge Scheib's chambers on October 6, 1980. DOT, however, has refused to honor the settlement agreement, arguing that its trial attorney had neither express nor implied authority to settle the case and therefore, that no settlement occurred. After a hearing on Limestone's petition for rule to show cause why the settlement agreement should not be enforced, Judge Scheib ordered that the agreement be enforced in all its terms.

Limestone argues that, because the DOT attorney testified before the trial court that the regular DOT practice with regard to settlements was for the attorney concerned to receive oral authority to settle, and that he had received such authority, a valid settlement agreement had been reached and should be enforced. Judge Scheib, agreeing with Limestone's position, found as a fact that the parties did enter into a settlement agreement on October 6, 1980, and concluded as a matter of law that the agreement was enforceable.

The procedure for settling claims against the Department of Transportation is set forth in 37 Pa. Code ยง 141.33, which provides in pertinent part:

Before any claim may be settled or terminated, the Legal Bureau shall be required to consult with the Bureau of Right-of-Way, in accordance with the procedures set forth in Chapter XV of the Right-of-Way Manual, Department of Transportation, as approved by the Federal Highway Administration. In claims handled by trial attorneys ...


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