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PAGNI v. COMMONWEALTH (07/21/55)

July 21, 1955

PAGNI
v.
COMMONWEALTH, APPELLANT.



Appeal, No. 85, April T., 1955, from judgment of Court of Common Pleas of Allegheny County, April T., 1950, No. 3227, in case of Gino Pagni et ux. v. Commonwealth of Pennsylvania. Judgment affirmed. Appeal by property owners from decision of board of viewers refusing award in condemnation proceedings. Before MARSHALL, J.

COUNSEL

Harry M. Jones, with him Thomas C. Evans, Phil H. Lewis, Deputy Attorney General, and Herbert B. Cohen, Attorney General, for appellant.

Louis Vaira, with him Esler W. Hays, for appellees.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Ross

[ 179 Pa. Super. Page 215]

OPINION BY ROSS, J.

The Commonwealth appeals from judgment entered on a jury verdict for the taking of appellees' property under the exercise of the power of eminent domain.

On November 20, 1942 Governor James approved a plan appropriating certain lands of the plaintiffs for the relocation of a public highway. No notice was given to plaintiffs of this plan, nor was it recorded in Allegheny County where the land was located. Nothing further was done until July 1948, when the Highway Department entered upon the land and appropriated it for the highway. On December 19, 1949 the plaintiffs petitioned the Court of Quarter Sessions seeking the appointment of a Board of View which in due course was appointed and filed its report rejecting plaintiffs' claim. They appealed to the Court of Common Pleas and secured a verdict for $2,000. Appellant's motions for new trial and judgment n.o.v. were refused, judgment was entered on the verdict, and this appeal followed.

The sole question is whether the plaintiffs' claim is barred because it was filed more than six years after the Governor signed and approved the plan for relocation as provided in the Act of June 11, 1935, P.L. 302, sec. 1, 12 PS sec. 43. The Act provides: "... 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

[ 179 Pa. Super. Page 216]

Governor, but not thereafter. All claims shall be forever barred after the expiration of the said period of six years." Despite the positive language of this Act, we must hold that plaintiffs' claim is not barred. To do otherwise, in the face of a lack of notice, actual or constructive, would violate their right to due process of law in the taking of their property. They cannot be held for their failure to act when they did not know that their right of action had accrued, and this lack of knowledge was due not to any fault of theirs but to a failure of the Commonwealth to give such notice, either actual or constructive.

We are aware, as appellant points out, that this statute does not require that any actual notice be given. That is not controlling. Statutes concerning eminent domain are to be strictly construed. Statutory Construction Act, Act of May 28, 1937, P.L. 1019, Art. IV, sec. 58, 46 PS sec. 558(4). We must presume, in interpreting the statute, that the Legislature intended to comply with the Federal and State constitutional requirements. Statutory Construction Act, supra, sec. 52, 46 PS sec. 552(3). Thus we believe the Legislature contemplated that in the ordinary course of events the actual work in accordance with the plans approved by the Governor would be begun within a reasonable time after their approval. That, of course, would be notice to the landowner and he would have more than sufficient time to file his claim. It certainly was not contemplated that the actual work would not be started until the six-year period had practically run.

Indicative of this intent is the fact that the Legislature at that time required no recording of plans for present improvements while it did require recording of plans for future construction or reconstruction. Act of May 31, 1911, P.L. 468, sec. 8, as ...


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