Coleman Harrison, Pittsburgh, for appellant.
Maurice Louik, Asst. County Solicitor, and Nathaniel K. Beck, County Sol., Pittsburgh, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther and Wright, JJ.
[ 173 Pa. Super. Page 505]
Appellant is the owner of a tract of land situate in Patton Township, Allegheny County. On July 12, 1940, the County Commissioners adopted a resolution to relocate, widen and change the grade of Moss Side Boulevard. The procedure followed was in accordance with
[ 173 Pa. Super. Page 506]
the Act of May 2, 1929, P.L. 1278, §§ 871 and 916, 16 P.S. §§ 871 and 916. After favorable action by the Grand Jury on July 30, 1940, the improvement was approved by the Quarter Sessions Court on August 5, 1940. A strip of appellant's land 80 feet wide by approximately 1800 feet long was appropriated. The record is silent as to the time when the actual physical taking occurred, although appellant contends that it was not for 'many months' after the official taking. On October 15, 1946, appellant filed a petition in the Court of Common Pleas asking for the appointment of viewers to assess the damages. The County filed exceptions to the award of the viewers on the ground that recovery was barred by the Act of 1891, P.L. 109, as amended by the Act of 1935, P.L. 302, 12 P.S. §§ 43, 43a. The exceptions were sustained, and this appeal followed.
The statute in question provides as follows:
'Section 1. Be it enacted, etc., That petitions for the assessment of damages for the opening or widening of any street, road or highway, when the damages are not assessed by the view opening the road, may be filed in the court of quarter sessions within the period of six years from the final confirmation of a report, or the entry of a decree or order opening the said street, road or highway, or within six years from the date of notice of the intended opening of the same, under and ordinance or resolution duly passed, but not thereafter. In the case of State highways or other highways or roads which the Secretary of Highways has authority to change, alter or widen with the approval of the Governor, such petitions shall be presented within six years from the date of the approval of the plan by the Governor, but not thereafter. All claims shall be forever barred after the expiration of the said period of six years.
'Section 2. In all cases involving damages for the opening or widening of any streets, roads or highways, in which no time limit for the presentation of petitions
[ 173 Pa. Super. Page 507]
or the expiration of a right of action has heretofore been fixed by statute, such petitions may be presented to the proper court of quarter sessions, and the right of action for damages may be claimed within six years from the date ...