Appeal from a Judgment Entered May 23, 1988 in the Court of Common Pleas of Delaware County, Civil, No. 83-7999.
Edward C. Toole, Philadelphia, for appellant.
Kurt Denke, Philadelphia, for Greyhound Corp., appellee.
Richard C. Biedrzycki, Philadelphia, for Exxon Corp., appellee.
Harriet F. Withstandley, Philadelphia, for Bell of Pennsylvania, appellee.
Cirillo, President Judge, and Rowley and Hester, JJ.
[ 386 Pa. Super. Page 426]
This is an appeal from a judgment entered by the Court of Common Pleas of Delaware County quieting title in the defendants, the successors and assigns of the Baldwin Locomotive Works. Greyhound Corporation is the only defendant to have filed a brief in this court. The appellant, Central Delaware County Authority [the Authority], purchased eleven acres of land from Baldwin in 1941, and another three acres in 1950. The deeds from those transactions include the following language:
It is specifically covenanted, stipulated and agreed between the parties hereto that the said tract of land while in the ownership and possession of the said Central Delaware County Authority and its successors, shall be kept available for and shall be used only for public purposes, by the said Central Delaware County Authority and its successors or any other public instrumentality or other agency which may hereafter acquire title to the same. In the event that at any time hereafter said use shall be abandoned so that the said tract shall cease to be used for said public purposes, then and in such event The Baldwin Locomotive Works, its successors and assigns, shall have the right to repurchase, retake, and reacquire the same upon the payment, either to the Central Delaware County Authority if owner thereof, or to any successor in right thereto, or to the municipalities for which the said vendee or its successors shall be acting, the sum of fifty-five hundred dollars ($5,500) above mentioned and herein provided to be paid therefore; or in the event of dispute, the said sum may be paid into Court in any appropriate proceeding for the benefit of any and all parties entitled to the same. In any such case, vendee shall have the right to remove all improvements.
PROVIDED, HOWEVER, that if the Baldwin Locomotive Works does not pay the sum of fifty-five hundred dollars ($5,500) to the said Authority, or otherwise as
[ 386 Pa. Super. Page 427]
above provided, within six months after the date when the Authority or its successors in title abandon the said property for public purposes, or the date when notified by the Authority of its intention to abandon the property, then and in such event this covenant shall become void and of no effect.*fn1
The Authority is still in possession of the land, and maintains the sewage treatment plant it had erected there. The plant had remained in operation for some twenty-six years; at this time, however, sewage which had been treated at that site is piped elsewhere for treatment. The Authority now wishes to either sell the property, or find an alternate use for it. It filed suit in 1983 requesting a judgment from the court as to the validity of the above provisions in the deeds. The Authority argued that those provisions violated the rule against perpetuities and that they were void as unreasonable restraints on the alienation of the property in question. The rule against perpetuities claim was submitted to the Honorable Frank T. Hazel for disposition, while testimony was taken by the Honorable Clement J. McGovern on the Authority's restraint on alienation claim. Judge Hazel found that the provisions in question did not violate the rule against perpetuities. Judge McGovern found that the restrictions did not constitute a restraint on alienation.
The Authority filed post-trial motions concerning both issues; these motions were denied by Judge McGovern. It then praeciped for the entry of judgment, and appealed from the entry of that judgment.*fn2 Three issues are raised on appeal to this court:
[ 386 Pa. Super. Page 428]
(1) Whether the Court below erred in concluding that the Rule Against Perpetuities did not render the restrictive covenants contained in Plaintiff's 1941 and 1950 deeds null and void?
(2) Whether the Court below erred in concluding that the covenants are not unreasonable restraints on alienation?
(3) Whether the Court below erred in failing to consider the testimony of Plaintiff's expert witness and related exhibits ...