Southern Delaware County Authority v. Boothwyn Farms Co.

43 Pa. D. & C.2d 513, 1967 Pa. Dist. & Cnty. Dec. LEXIS 242
CourtPennsylvania Court of Common Pleas, Delaware County
DecidedSeptember 6, 1967
Docketnos. 150 and 151 of 1965
StatusPublished

This text of 43 Pa. D. & C.2d 513 (Southern Delaware County Authority v. Boothwyn Farms Co.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Delaware County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Southern Delaware County Authority v. Boothwyn Farms Co., 43 Pa. D. & C.2d 513, 1967 Pa. Dist. & Cnty. Dec. LEXIS 242 (Pa. Super. Ct. 1967).

Opinion

Bloom, J.,

This matter comes before the court en banc on exceptions filed by Boothwyn Farms Company and Dresner Company to findings of separate juries of view that the petitions filed in their behalf to have damages assessed for the taking of certain real estate owned by them for the construction of a sanitary sewer are barred under the applica[515]*515ble statute of limitations. By stipulation of the parties, testimony had been offered solely in connection with this issue, it being further agreed that Dresner Company and Boothwyn Farms Company had the right to immediately file exceptions if the findings on this issue were adverse to them.

The record discloses that on November 25, 1958, the Authority adopted three resolutions of condemnation relating to the lands involved in the within actions located in Upper Chichester Township for the purpose of placing a sanitary sewer line. All three resolutions referred to Boothwyn Farms Company as the registered owner. Certain of the condemned properties were not owned by Boothwyn Farms Company. In fact, Dresner Company was the owner of record. Petitions for appointment of viewers in these cases were not filed until January 5,1965.

By virtue of the Authority’s organization by Upper Chichester Township, it is empowered to exercise the right of eminent domain in the same manner as the township: Act of May 2, 1945, P. L. 382, sec. 11, as amended June 12, 1947, P. L. 571, 53 PS §314. At the time of the passage of the resolutions for condemnation, the applicable statutory provision with regard to the limitation for the bringing of an action to secure damages was as follows:

“No person having an interest in any land, property or material appropriated, taken, used, occupied, injured, destroyed or otherwise adversely affected by any political subdivision or authority in the exercise of its power of eminent domain may petition for the appointment of viewers for the assessment of damages or bring an action for damages after the expiration of a period of six years from the date on which the political subdivision or authority became entitled to possession of the land, property or material or any interest therein. This act shall not apply to petitions [516]*516for the appointment of viewers for the assessment of damages or to actions for damages as the result of the exercise of the power of eminent domain by any authority unless (1) a copy of the resolution by which such authority exercises its power of eminent domain is personally served on the owner of the affected property, or (2) if the owner cannot be served personally, service of a copy of the resolution is made on the owner by registered or other mail service as will result in the post office department making a record of delivery and the sender receiving a receipt signed by the addressee or his agent evidencing delivery, or (3) if the owner cannot be served personally or by mail as herein provided, unless the resolution is published at least one time in a newspaper of general circulation in the county in which the affected property is located and at least one time in the legal periodical, if any, of such county”: Act of April 3, 1956, P. L. (1955) 1366, sec. 2, 26 PS 152.

Thus, under this provision, the statute of limitations begins to run from the date on which the Authority became entitled to possession, provided service of the resolution has been made in an appropriate manner. The First Class Township Code provided that a condemnee became entitled to possession when it had “tendered a bond to secure the payment of damages, and the same has been accepted, or if the acceptance has been refused and the bond has been filed in and approved by the court . . .”: Act of June 24, 1931, P. L. 1206, art. XIX, sec. 1903, as amended, May 27, 1949, P. L. (1955) 53 PS §56903.

Hence, the legal framework dictates a determination as to when, if ever, service was made of the appropriate resolution as well as tender of the bond so as to commence running of the statute of limitations.

The Authority contends that service was made of both the resolution and the bond on December 2, 1958, [517]*517and that, therefore, the applicable statute of limitations expired on December 2, 1964. On the other hand, the condemnees submit that service was never made in fact, and, if made in the manner described in the testimony in behalf of the Authority, then that service was invalid. The basis of the Authority’s position is a handwritten notation on a folder in the Authority’s file bearing the caption “Boothwyn Farms (Dresner) ”, which notation reads as follows:

“12/2/58. Mr. Bums served ctfd copy of condemnation and bond of three properties on Mr. Storck, secretary, and accepted by him”.

The testimony discloses that this notation was placed on the folder by the secretary to William A. Burns, Esq., the then solicitor of the Authority, at his direction, the day following the alleged transaction. Mr. Storck testified that he was a personal secretary to Isidore Dresner at his Boothwyn real estate office, and that he was paid by Boothwyn Construction Company. He further testified that he was never an officer of either corporation, and he denied conducting any business for the Boothwyn Farms Company or Dresner Company, or that he had ever received any condemnation papers from Mr. Burns.

Both Isidore Dresner and his son, Milton Dresner, testified that Boothwyn Farms Company and Dresner Company had their offices in Philadelphia and neither corporation conducted any business at the office in Boothwyn. However, Isidore Dresner was an officer in both corporations and held substantial stock in both companies. There was further testimony that William A. Bums, Esq., was also the attorney for Isidore Dresner and during the period in question had been in contact with him on frequent occasions. Nevertheless, the Dresners denied any knowledge of the condemnation until long after the resolution and the date of the alleged service.

[518]*518With this basic factual setting in mind, we turn to the consideration of the matters individually.

1. The Dresner Company

The matter with respect to the Dresner Company resolves itself to a principle which is fundamental to the exercise of the power of eminent domain in this Commonwealth. Though recognized as necessary, the power to take private property is regarded as harsh and peremptory, and its grant and manner of exercise have been strictly construed by the courts: Pennsylvania Telephone Company v. Hoover, 209 Pa. 555, 557; Seligsohn Appeal, 410 Pa. 271, 275. By mandate of the Constitution of the Commonwealth, no private property may be taken for public use without compensation, “which compensation shall be paid or secured before such taking”: article XVI, sec. 8.

The question in this case is whether the taking was ever secured by tender of the bond to the owners required by the provision of the First Class Township Code cited above. Was the taking of the property owned by Dresner Company properly secured by a bond designating Boothwyn Farms Company as owner and obligee thereunder? A similar question has been considered by the Supreme Court in a somewhat different setting. In Lutz v. Allegheny County, 302 Pa. 488, a husband and wife who owned certain real property sought to enjoin the county commissioners from taking the real estate. Various objections to the propriety of the condemnation procedure were raised but were rejected by the lower court and the Supreme Court.

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Related

Seligsohn Appeal
189 A.2d 746 (Supreme Court of Pennsylvania, 1963)
Lutz Et Ux. v. Allegheny County
153 A. 903 (Supreme Court of Pennsylvania, 1930)
Pennsylvania Telephone Co. v. Hoover
58 A. 922 (Supreme Court of Pennsylvania, 1904)
Shelburne Sportswear, Inc. v. Philadelphia
220 A.2d 798 (Supreme Court of Pennsylvania, 1966)
Nash v. Rector, Churchwardens & Vestrymen of the Evangelical Lutheran Church
1 Miles 78 (Philadelphia County Court of Common Pleas, 1835)

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Bluebook (online)
43 Pa. D. & C.2d 513, 1967 Pa. Dist. & Cnty. Dec. LEXIS 242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southern-delaware-county-authority-v-boothwyn-farms-co-pactcompldelawa-1967.