Curtis v. Redevelopment Authority

Opinion by Judge Mencer, This case arises on cross appeals, brought by the Redevelopment Authority of the City of Philadelphia (Authority) and William D. and Winifred M. Glockner on one side and Dewey Lee Curtis on the other. Curtis commenced this action by bringing a suit in equity against the Glockners and- the Authority, seeking to have the Glockners’ deed to property located at 220 Delancey Street reformed to reflect the reservation of an easement in favor of Curtis’ property over an alleyway 3 feet wide running from the .Curtis property over the Glockner property.to Delancey Street. The Glockners received their title from the Authority — 362 — which, had condemned the previous owner’s interest. The Court of Common Pleas of Philadelphia County granted Curtis’ request by a decree nisi dated January 30, 1974 Exceptions were filed to this decree by the Grlockners and the Authority. On December 30, 1975, the court en banc sustained the exceptions in part and denied them in part. The final order granted Curtis leave to file a petition for viewers nunc pro tunc and tolled the statute of limitations but reversed the trial court’s decree requiring reformation of the Griockner deed. From this order Curtis appeals, alleging, in effect, that his proper remedy is the return of his easement rights rather than fair compensation for his interest. The Authority has appealed, asserting that Curtis’ rights were extinguished when the Authority condemned the property and that his failure to take timely action to protect his rights has left him with no remedy. The parties had entered into a stipulation of facts below which reveals the following chronology. On October 28, 1960, Curtis took title to property known as 229 Pine Street in Philadelphia. The deed included an express easement over the alley in question here, “leading into Delancey Street as and for way [sic] passageway and water course at all times hereafter forever.” This easement was created by deed in 1843. On June 21,1961, an ordinance of the City Council of Philadelphia approved the Authority’s urban renewal plan including the area covered by what is now the Griockner property. The Authority, by resolution dated December 7, 1962, authorized acquisition of the property. On December 10, 1962, condemnation proceedings were begun by a petition for a rule to show cause why the Authority should not have leave to post bond for condemnation damages. On December 26, 1962, the Authority was permitted to post bond. — 363 — Throughout the proceedings the parcel of land containing the Glockner property, including the alley, was described by metes and bounds and denominated as part of “Parcel 8” which was to be condemned. No mention was made of an easement. The basis of Curtis’ complaint was that he was denied due process and equal protection of the law because he was not given actual notice that his easement was to be condemned. The Authority concedes that it did not seek to notify easement holders directly. Curtis did not occupy the erstwhile dominant tenement at that time and stated that he was unaware of the condemnation until 1970. The court én banc, by adopting the findings of fact and certain conclusions of law in the trial court’s opinion, agreed that Curtis had been deprived of due process but specifically refused to conclude that the Authority had acquired less than an absolute fee simple title which it transferred to the Glockners. By refusing to adopt conclusion 12 of the trial court, the court en banc, by implication, concluded that Curtis’ easement had been extinguished by the condemnation. In equity matters, our scope of review is limited; the chancellor’s findings confirmed by the court en banc are binding on appeal if supported by substantial evidence. Piercing Pagoda, Inc. v. Hoffner, 465 Pa. 500, 351 A.2d 207 (1976). However, we may review the conclusions derived from the findings for errors of law. Pruner Estate, 400 Pa. 629, 162 A.2d 626 (1960). The chancellor’s conclusions 5, 6, and 7 adopted by the court en banc comprise the heart of the matter before us. The chancellor concluded that Curtis was denied his constitutional right to be heard and hence denied due process of law because he was not notified of the condemnation. Further, he concluded that there had been no effective condemnation of Curtis’ easement. We cannot agree. — 364 — The cases cited by Curtis in support of his appeal arise mainly from petitions by landowners for a board of view which are met by a defense based on the statute of limitations.1 Plaintiffs in those cases did not seek to have their deeds reformed or title reinstated. We can find no authority for the proposition that Curtis is entitled to have the Glockner deed reformed to reflect his easement. On the contrary, the relevant judicial authorities, as well as the statutory law, state that in a condemnation by a political subdivision a full fee simple is taken unless the condemnor expressly states that it is taking less, Starkey v. Philadelphia, 397 Pa. 512, 156 A.2d 101 (1959); Act of April 14, 1949, P.L. 442, §1, 26 P.S. §201. We find, therefore, that Curtis was not entitled to retain his easement and his appeal must be dismissed.2 Notice ■ Under the law as it existed at the time of the condemnation of “Parcel 8,” no statutorily defined form of notice to condemnees was required.3 Therefore, general concepts of due process must guide us. In Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950), the United States Supreme Court held — 365 — that, iii order for notice to comply with due process, it must be reasonably calculated under all the circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to be heard. In the context of eminent domain, the Supreme Court in Schroeder v. New York, supra note 1, held that a landowner, whose name and address were on the tax rolls and easily ascertainable, was denied due process when newspaper notices and postings which did not contain her name were the only forms of notice given. The Supreme Court stated: “We hold that the newspaper publications and posted notices in the circumstances of this case did not measure up to the quality of notice which the Due Process Clause of the Fourteenth Amendment requires.” 371 U.S. at 211. Likewise, in Angle v. Commonwealth, supra note 1, the Pennsylvania Supreme Court held that the mere filing of highway plans in Harrisburg did not constitute notice to the landowners when the ultimate width of the highway appeared only from pencilled lines on the plan filed some 32 years before the actual widening. Strong Appeal, supra note 1, and Pagni v. Commonwealth, 179 Pa. Superior Ct. 213, 116 A.2d 294 (1955), on which Curtis relies, also deal with whether the filing of highway plans is constructive notice to landowners of a taking. The case at bar is quite different; the Authority and the City of Philadelphia at all stages observed the proper procedure with adequate publicity. Unlike the highway department in Angle, the Authority’s work proceeded with little delay. Had Curtis inspected his property and the surrounding area, he surely would have observed the postings and other activity. In addition, we note that there is no showing on this record that the existence of Curtis’ easement was readily or easily ascertainable through the servient tenement’s chain of title. In short, while it is conceded that Cúr — 366 — tis’ name was readily ascertainable as the owner of 229 Pine Street, the fact of a discoverable connection, if any, between 229 Pine Street and 220 Delancey Street is not obvious from this record. It was not unreasonable for the Authority to rely on constructive notice in this situation. Therefore, we hold that under the facts and circumstances appearing in this case Curtis should have had constructive notice of the taking in 1962. His failure to make a timely petition for damages within the 6-year limitations period places him out of court. Order reversed and complaint dismissed. Order Now, this 7th day of December, 1976, the appeal of Dewey Lee Curtis at No. 140 C.D. 1976 is denied, the appeal of the Redevelopment Authority of the City of Philadelphia at No. 2 T.D. 1976 is sustained, the order of the Court of Common Pleas of Philadelphia County sitting en banc is reversed, and the complaint in equity filed by Dewey Lee Curtis is dismissed. Footnotes [1] See, e.g., Schroeder v. New York, 371 U.S. 208 (1962); Strong Appeal, 400 Pa. 51, 161 A.2d 380 (1960); Angle v. Commonwealth, 396 Pa. 514, 153 A.2d 912 (1959). [2] Curtis relies heavily on Pocono Pines Corp. v. Commonwealth of Pennsylvania, 10 Pa. Commonwealth Ct. 466, 310 A.2d 719 (1973), for his right to such relief. We note, however, that the holding in Pocono Pines arose in a different context and was subsequently vacated by the Pennsylvania Supreme Court for lack of jurisdiction for failing to join an indispensable party. Pocono Pines Corp. v. Pennsylvania Game Commission, 464 Pa. 17, 345 A.2d 709 (1975). As such, Pocono Pines is not precedential. [3] See Comment to Section 405 of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. §1-405; also E. Snitzer, Pennsylvania Eminent Domavn §405-1 (1965).