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COMMONWEALTH v. LARKIN AND COMPANY (11/18/52)

November 18, 1952

COMMONWEALTH
v.
LARKIN AND COMPANY, INC., APPELLANT



Appeals, Nos. 156 and 197, March T., 1952, from order of Court of Common Pleas of Butler County, Dec. T., 1951, No. 11, in case of Commonwealth of Pennsylvania, Department of Highways v. Larkin and Company, Inc. Order affirmed.

COUNSEL

Lee C. McCandless, with him Samuel W. Greer and Greer & Greer, for appellant.

John C. Dillon, Jr., with him John R. Rezzolla, Jr., Joseph J. Laws, Thomas C. Evans, Phil H. Lewis, Deputy Attorney General, and Robert E. Woodside, Attorney General, for appellee.

Paul E. Beaver, Assistant Counsel, with him Albert E. Luttrell, Assistant Counsel and Lloyd S. Benjamin, Acting Counsel, for Pennsylvania Public Utility Commission, intervenor appellee.

Before Stern, Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Chidsey

[ 371 Pa. Page 595]

OPINION BY MR. JUSTICE CHIDSEY

The decision in this case depends upon the validity of the order of the court below reading as follows: "Now, January 30, 1952, for the reasons hereinabove set forth, a writ of possession is directed to issue, to W. H. Larkin and Company, Inc., requiring it to remove its facilities and crane from the viaduct or elevated street known as the Wayne Street Viaduct."

Exceptions filed to this order on behalf of Larkin and Company, Inc. (here appellant) were dismissed March 27, 1952. In the order dismissing the exceptions

[ 371 Pa. Page 596]

    the court directed: "The cost of removing the attachments to this elevated street, known as the Wayne Street Viaduct, shall be borne by Larkin and Company, Inc.".

The factual background for this case begins in 1912. At that time the Borough of Butler enacted an ordinance which provided for the construction of an elevated street over certain railroad tracks in the borough. This elevated street was called "Wayne Street Viaduct". The ordinance also defined the land and easements condemned and made provision for the payment of damages. Before construction was started, however, The Public Service Company Law of 1913, P.L. 1374, July 26, 1913, gave the Commission the exclusive control of the construction and maintenance of all utility crossings. After application by the borough on June 16, 1914, the Public Service Commission issued a certificate of public convenience for the erection of the viaduct.

The appellant company's predecessor in title was W. H. Larkin. In accordance with the procedure existent at the time (1917) he was first awarded damages of $648.37 by the Commission. Upon appeal to ...


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