Emrick v. Bethlehem Township ( 1984 )

NIX, Chief Justice,

dissenting.

Although the opinion announcing the judgment of the Court is correct in its general statement of the law relating to a “power of termination,” I am troubled by its use of events which transpired during the pendency of this lawsuit to make a finding that the power had been properly exercised. Here the appellee, who initiated this action to quiet title in an effort to seek a judicial determination of the respective interests resulting from the reverter clause in the 1914 deed and the events that had occurred up to the time of the filing of the suit, is belatedly told that its interest was validly terminated because of its inaction during the pendency of the action.^*

The jurisprudentially sound approach would have been to advise the parties that appellants’ re-entry without notice and their failure to allow a period of one year of continued nonuse of the property for the specified purpose did not constitute a valid exercise of the power of termination. I do not quarrel either with the conclusion that the wrongful re-entry did not extinguish the “power to terminate” or that the letter of September 5, 1979 satisfied the written notice required by the reverter clause under the August 8, 1914 deed. However, since this lawsuit was instituted on May 19, 1980, a year of nonuse or abandonment had not followed that notice. Clearly, the township is entitled to some period of time to elect to use the land for “railroad purposes.”

McDERMOTT and PAPADAKOS, JJ., join in this opinion.

* This situation is exacerbated by the majority’s conclusion that "... notice in writing was given to appellee in the form of appellant’s Answer, New Matter and Counterclaim filed in this lawsuit____” At 740.