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12/08/97 CHARLES AND MARLENE CAMPBELL v. LOWER

December 8, 1997

CHARLES AND MARLENE CAMPBELL, APPELLANTS
v.
LOWER PROVIDENCE TOWNSHIP



Appealed From No. 91-07098. Common Pleas Court of the County of Montgomery. Judge BROWN.

Before: Honorable James Gardner Colins, President Judge, Honorable Joseph T. Doyle, Judge, Honorable Bernard L. McGINLEY, Judge, Honorable Doris A. Smith, Judge, Honorable Dan Pellegrini, Judge, Honorable Rochelle S. Friedman, Judge, Honorable James R. Kelley, Judge. Opinion BY Judge Smith. Judge Doyle Dissents. Concurring Opinion BY President Judge Colins. Judge McGinley joins in this Concurring opinion.

The opinion of the court was delivered by: Smith

OPINION BY JUDGE SMITH

FILED: December 8, 1997

Charles and Marlene Campbell (the Campbells) appeal from an order of the Court of Common Pleas of Montgomery County (trial court) that dismissed their three-count complaint against Lower Providence Township (Township) relating to the grant of an easement to the Township for construction of a street. *fn1 The question presented is whether the trial court erred in dismissing the Campbells' complaint, where it determined that they had not proved fraud in the inducement to make the agreement that led to the easement. The Campbells had alleged also that the street as constructed violated the terms of the agreement, resulting in injury to the rest of their property.

I

The trial court found that the Campbells' residence is at the corner of Marilyn Avenue, a public road, and Oaklyn Avenue, a portion of which was, until 1990, a "paper street" shown on a subdivision plan, which had not been dedicated to the Township. The Township's Council passed a resolution to extend Oaklyn through to Marilyn and to acquire some 4,700 square feet of the Campbells' property for that purpose. The Township Manager visited the Campbells at their home on May 25, 1989 to explain the Township's plans. The Campbells signed an agreement on that date under which they promised to grant an easement for the construction, opening and maintenance of a public road and the locating of public utilities in the conveyed right-of-way.

The Township agreed to build the road to current Township specifications, not to impose a benefit assessment and to install a paved driveway from Marilyn Avenue as shown on an attachment to the agreement. The Campbells further agreed that the consideration provided would be the complete satisfaction of any claim they might have for damages from the opening of the street extension and that they would not seek the appointment of viewers. The Campbells later requested that the driveway be provided from Oaklyn Avenue, and the Township agreed.

The Campbells executed the grant of the easement in April 1990, and construction began in early summer and was completed by September. Although the Campbells knew that the new road would be above the level of their property, when it was completed it was substantially higher than they had anticipated. They did not allow the Township to make extensive changes in elevation and contour necessary to accommodate a driveway from Oaklyn.

The Campbells filed an action in April 1991, which alleged that the Township represented that the new road would be no higher than 12 to 18 inches above their property at the driveway with a maximum elevation of 36 inches at the carport/garage and that the Township would take all precautions to construct it properly. As constructed, the extension had a maximum elevation of four and one-half feet, and no driveway to it could be built without major regrading and other alterations to the Campbells' rear yard. Further, a vertical wall of dirt without any retaining device had been created, resulting in a wash of mud and debris and possible future collapse of the curb and roadbed on to their property.

Count I in Equity sought to have the easement set aside on the grounds of fraud and coercion in securing the Campbells' signatures. Count II in Trespass sought damages for intentional or negligent improper construction of the road due to failure to condemn sufficient land, failure to build in accordance with regulations and good engineering practice and failure to account for the right of access. Count III in Eminent Domain alleged an illegal de facto taking of property without just compensation and requested an award of damages or, in the alternative, the appointment of viewers.

The trial court concluded that the case rose or fell on the issue of fraud and that, if the Campbells failed to meet the exacting standard for establishing fraud, they would be without a remedy because of the terms of the May 1989 agreement. Based on testimony of the Campbells, the trial court determined that they had not proved by clear and convincing evidence that the Township Manager deliberately or recklessly misled them when he got them to sign the agreement. The court noted that lack of access from Oaklyn Avenue would not have affected their willingness to agree because at that time the new driveway was proposed to be built from Marilyn Avenue.

The court dismissed the Campbells' complaint in its entirety. It stated that the Campells would have had a right to recover for consequential damages pursuant to Section 612 of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-612, but that the May 1989 agreement foreclosed any such claim. Section 612 provides: "All condemnors, including the Commonwealth of Pennsylvania, shall be liable for damages to property abutting the area of an improvement resulting from change of grade of a road or highway, permanent interference with access thereto, or injury to surface support, whether or not any property is taken." In Capece v. City of Philadelphia, 123 Pa. Commw. 86, 552 A.2d 1147 (Pa. Commw. 1989), the Court reiterated that a claim for damages based on the causes specifically enumerated in Section 612 is distinct from a general claim for a de facto taking of property.

Further, because access from Marilyn Avenue had not been disturbed, there was no taking of access under Borough of Dickson City v. Malley, 94 Pa. Commw. 386, 503 A.2d 1035 (Pa. Commw. 1986). There this Court held that the elevating and paving of a dirt road, eliminating an owner's access from it, did not constitute a taking because the owner still had reasonable access to an intersecting street. The Court remanded for appointment of viewers ...


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