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DEPARTMENT PROPERTY AND SUPPLIES v. RHOADS (09/27/54)

September 27, 1954

DEPARTMENT OF PROPERTY AND SUPPLIES, APPELLANT,
v.
RHOADS



Appeals, Nos. 29 to 32, inclusive, May T., 1954, from orders of Court of Common Pleas of Dauphin County, Sept. T., 1952, No. 663; March T., 1953, No. 85, and Sept. T., 1952, Nos. 664 and 458, in cases of Department of Property & Supplies of the Commonwealth of Pennsylvania v. Ross R. Rhoads and Lena E. Cohen, and In Re Widening of Forster Street in City of Harrisburg. Orders affirmed. Proceeding upon exceptions by Department of Property and Supplies of Commonwealth to decision of Board of Viewers directing award against City of Harrisburg and rejecting claim of Department of Property and Supplies upon earlier condemnation. Order entered dismissing exceptions and confirming report, opinion by NELLY, J. Commonwealth and City of Harrisburg, respectively, appealed.

COUNSEL

Arthur H. Hull, Special Deputy Attorney General, with him Phil H. Lewis, Deputy Attorney General, Frank F. Truscott, Attorney General, Spencer G. Hall, City Solicitor and James S. Bowman, Assistant City Solicitor, for appellants.

Paul H. Rhoads, with him Walter W. Shearer and Rhoads, Sinon & Reader, for appellee.

William S. Bailey, with him John B. Pearson and Storey, Bailey & Rupp, for appellee.

Before Stern, C.j., Stearne, Jones, Chidsey and Musmanno, JJ.

[ 378 Pa. Page 604]

OPINION PER CURIAM

These appeals by the Commonwealth, acting by the Department of Property and Supplies, and the City of Harrisburg arise out of the condemnation of properties of the several appellees in the widening of Forster Street in Harrisburg.

The issues raised have been thoroughly litigated below and there now remains but the single question whether the appropriations were made under the Capitol Park Extension Act of June 3, 1943, P.L. 818, or under the State Highway Law of June 1, 1945, P.L. 1242, as implemented by The Third Class City Code of June 28, 1951, P.L. 662. Upon the answer to that question depends whether the properties were taken not later than January 29, 1945, in an exercise of the power of the Department of Property and Supplies under the Capitol Park Extension Act or on July 16, 1952, the date of the Governor's approval of the Highway Department's plan for the widening of Forster Street as filed and recorded in the Highway Department. The relative significance of the two dates lies in the fact that the fair market value of the properties was admittedly higher at the later date.

[ 378 Pa. Page 605]

The question was raised in the court below on exceptions by the Department of Property and Supplies and by the City of Harrisburg to the several reports of the Board of Viewers on the respective properties involved. In their reports, the Viewers concluded as a matter of law that the Department of Property and Supplies had not condemned the properties under the provisions of the Capitol Park Extension Act of 1943; that the Department of Highways of the Commonwealth had condemned them, under the provisions of the Highway Law of 1945 on July 16, 1952, the date the Governor approved the plans for the widening of Forster Street; and that the City of Harrisburg, by virtue of the Highway Law and the Third Class City Code, became liable for the payment of all damages incident to the widening of Forster Street.

The Viewers accordingly made awards of damages to the several property owners from which neither the Commonwealth nor the City of Harrisburg ever appealed. These awards, by lapse of time without appeal therefrom, have long since become final as liabilities of the City of Harrisburg. The Department of Property and Supplies and the City have contented themselves with their appeals to this court from the orders of the court below dismissing the exceptions to the Viewers' reports. It would be pointless now to consider what the situation of the appellants might have been, in the light of the final awards, had we found that their exceptions to the Viewers' reports were well taken.

The learned court below entered separate orders dismissing the appellants' exceptions to the Viewers' reports, accompanied in each instance by a clear, well-reasoned and thorough opinion by Judge NELLY, from ...


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