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LAKEWOOD MEMORIAL GARDENS (03/14/55)

March 14, 1955

LAKEWOOD MEMORIAL GARDENS, INC. APPEAL.


Appeal, No. 163, March T., 1954, from order of Court of Common Pleas of Allegheny County, april T., 1953, No. 121, in re Petition of Lakewood Memorial Gardens, Inc., for Appointment of Viewers, etc. Order affirmed.

COUNSEL

George J. Barco, with him Yolanda G. Barco, Grace D. Moore and Barco & Barco, for appellant.

John D. Mcintyre, with him Harry C. Pepper, Robert L. Rubendall, Deputy Attorney General, Frank F. Truscott, Attorney General, and Reed, Smith, Shaw & McClay, for appellee.

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

Author: Jones

[ 381 Pa. Page 47]

OPINION BY MR. JUSTICE JONES

This appeal arises out of an eminent domain proceeding. The sole question for decision is the date of

[ 381 Pa. Page 48]

    the taking. There are no factual disputes, the parties having stipulated, agreeably to our Rule 41, the facts essential to a decision.

On June 14, 1949, the Pennsylvania Turnpike Commission, pursuant to the Western Pennsylvania Turnpike Extension Act of 1941, P.L. 101, as amended, 36 PS § 654 et seq., formally adopted a "Resolution Fixing and Locating the Western Pennsylvania Turnpike Extension" from the western terminus of the then existing turnpike at Irwin, Westmoreland County, to a point on the boundary line between Pennsylvania and Ohio according to plans identified by and attached to the resolution. The plans bore the signature of the Secretary and Treasurer of the Commission under the official seal of the Commission and had the approval of the Governor and the Department of Highways as required by the Act. The resolution described the lands to be taken for the western extension of the turnpike by the metes and courses of a line, the appropriation being fixed by the resolution at 100 feet on each side of the line defined, as shown on the plans, for a total width of 200 feet, additional lands necessary for slopes of cuts and embankments and such further lands as were deemed necessary for specified appurtenances. The resolution declared that the lands so described "shall be and hereby are acquired by the Pennsylvania Turnpike Commission under the provisions of the said Act of Assembly, and to the extent necessary therefor the Pennsylvania Turnpike Commission hereby exercises the power of condemnation vested in it by the provisions of the said Act of Assembly." The route of the proposed turnpike extension as described in the resolution of condemnation ran across the property of Lakewood Memorial Gardens, Inc., a Pennsylvania corporation and the present appellant (hereinafter referred to as Lakewood).

[ 381 Pa. Page 49]

On June 8, 1950, the Commission executed its own corporate bond which it delivered to Lakewood on June 11, 1950, securing payment of such sums as Lakewood might be found entitled to receive as damages incident to the Commission's entry upon and taking possession of the property described in the bond. The property so described was a part of the property described in the resolution of condemnation of June 14, 1949.

Lakewood acquired an equitable title to its property under an agreement of sale from the owner on December 13, 1949, and was incorporated on December 22, 1949, more than six months after the Commission's condemnation resolution. It received a deed for the property on January 27, 1950, which it recorded in March, 1950, obtaining about the same time from the prior owner an assignment of the damages occasioned by reason of the construction of the western turnpike extension and the relocation and construction of Legislative Route 910.

Three years later, viz., January 7, 1953, Lakewood filed its petition in the Court of Common Pleas of Allegheny County for the appointment of viewers to assess and award the damages caused by the construction of the western turnpike extension and the relocation and construction of Legislative Route 910 through and along the property owned by Lakewood.

At the hearing before the viewers a question of law was raised as to the date of the taking, the special significance whereof lay in its bearing on the amount of the damages, i.e., the difference between the relative market values of the property in question immediately before and immediately after the appropriation. It was the Commission's contention that the taking occurred upon adoption of the resolution of condemnation on June 14, 1949, while the property owner asserted that the appropriation did not take place until June 11,

[ 381 Pa. Page 501950]

, the date the Commission's bond was delivered to Lakewood to secure payment of the damages due. The viewers concluded that the time of the taking was the date of passage of the condemnation resolution and expressly so stated at the outset of the hearing as well as in their final report wherein they also awarded the petitioner damages for the property taken. Lakewood filed exceptions to the report, alleging error in the viewers' conclusion with respect to the date of the taking. The learned court below dismissed the exceptions. A supplemental report was filed and exceptions thereto were likewise dismissed. A second supplemental report was filed which the court confirmed. The effect of the court's order was to reinstate its original order confirming the report and award of damages. From that order, Lakewood has appealed.

The appellant contends that (1) the statute conferring the power of condemnation did not authorize a taking merely by the Commission's adoption of a resolution, (2) the resolution could not operate to condemn the appellant's land because it did not describe the property with sufficient definiteness and (3) under the applicable statute and the State Constitution, the damages are to be determined as of the date of the delivery of the Commission's bond to the condemnee.

From our examination of the appellant's two sets of extensive exceptions to the viewers' original and supplemental report, comprising in all fifty-six separate specifications of error, we fail to find one that gives any basis for the appellant's second contention as above listed. Not having been raised or considered in the court below, it is not reviewable here: Muse-Art Corporation v. Philadelphia, 373 Pa. 329, 332-333, 95 A.2d 542. It may also be observed, in passing, that of the numerous exceptions taken by the appellant, only one could possibly be deemed appropriate, viz., the

[ 381 Pa. Page 51]

    exception to the viewers' legal conclusion as to the date of the taking. Exceptions to viewers' reports, unlike appeals therefrom, are properly limited to procedural matters or questions of law basic to the inquiry: see Chester Municipal Authority v. Delp, 371 Pa. 600, 604, 92 A.2d 169; and Lower Chichester Twp. v. Roberts, 308 Pa. 195, 162 A. 460. As was said in Allentown's Appeal, 121 Pa. Superior Ct. 352, 356, 183 A. 360, - "When questions of fact which should go to a jury are attempted to be raised by exceptions, the court may properly relegate them to the triers of fact for disposition at the trial upon the appeal." Any other procedure "if followed, ... could lead only to confusion and interminable delay in the adjudication of the rights of the respective parties in interest": Urban Redevelopment Authority of Pittsburgh Appeal, 370 Pa. 248, 250, 87 A.2d 787.

The appellant's first and third contentions, as above stated, are but relative conclusions with respect to the same question, namely, what was the date of the taking. They will, therefore, be dealt with together. The solution of the one carries with it the answer to the other.

The Turnpike Commission's power of eminent domain in respect of the lands needed for the location and construction of its western extension was conferred by Section 9 of the Act of 1941, supra. The procedure prescribed for the exercise of the Commission's power to condemn is the same as that prescribed by the Act of May 21, 1937, P.L. 774, 36 PS § 652a et seq., which created the Pennsylvania Turnpike Commission and clothed it with the power of eminent domain to be exercised in locating and constructing the original section of the turnpike from a point near Middlesex, Cumberland ...


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