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HOLMES PETITION (11/14/55)

November 14, 1955

HOLMES PETITION


Appeal, No. 116, March T., 1955, from order of Court of Common Pleas of Allegheny County, Oct. T., 1952, No. 1821, in re Petition of Lewis W. Holmes. Appeal dismissed.

COUNSEL

Francis A. Barry, Assistant County Solicitor, with him Nathaniel K. Beck, County Solicitor, and John W. Mamula, Assistant County Solicitor, for appellant.

Ralph D. McKee, Jr., with him Alter, Wright & Barron, for appellees.

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

Author: Stern

[ 383 Pa. Page 100]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

This appeal under the Act of March 5, 1925, P.L. 23, challenges the jurisdiction of the court below to appoint a Board of Viewers under the circumstances hereinafter described.

Appellees' motion to quash the appeal on the ground that the question of jurisdiction was not properly raised in the court of first instance will be denied because, although it may, perhaps have been raised there only indirectly, it is important in the interest of the expedition of these protracted proceedings to decide the question at this time.

The claim of the Estate of Lewis W. Holmes against the County of Allegheny arises out of the widening of West Fifth Avenue in the City of McKeesport, which widening is a public improvement by the County authorized by the Pennsylvania Public Utility Commission. By proceedings in the Court of Common Please of Allegheny County at No. 109, July Term, 1950, the County petitioned for and received an appointment of a Board of Viewers to determine and award damages to the owners of property taken, injured, or destroyed by the widening. Holmes was the owner of a parcel of land on the southerly side of West Fifth Avenue and house and cottage erected thereon. As a result of the improvement 10 feet of the front of his lot were taken for right of way and in addition 1136 square feet were occupied for slope easement which incidentally resulted in the demolition of the house fronting on the Avenue. In the report of the Board of Viewers filed in July, 1950, Holmes was awarded damages in the

[ 383 Pa. Page 101]

    sum of $8,000. The report was confirmed absolutely and no appeal therefrom was taken.

In December, 1950, shortly after those proceedings had terminated, the earth commenced to slide on a part of the Holmes property which had not been actually taken by the County, thereby causing damage to the cottage located on the rear of the lot. Holmes accepted the $8,000 which had been awarded him but without prejudice to his right to recover fro the damages to his property remaining after the taking. In 1952, at No. 1821, October Term 1952, he petitioned the Court of Common Pleas of Allegheny County for a Board of Viewers to ascertain and award compensation to him for the damages suffered "by reason of the removal of the support necessary to the premises remaining after the taking by the widening of a portion of West Fifth Avenue, and the consequent taking of petitioner's lands, property or materials." His petition averred that the weakening of the support and the resultant injury and damage to the property were the necessary and unavoidable consequences of the nonnegligent performance of the West Fifth Avenue improvement. The court granted the prayer of the petition and appointed a Board of Viewers, whereupon the County moved the court to vacate its order and to dismiss the petition on the ground that it must be conclusively presumed that the original award included all damages recoverable in consequence of the act of eminent domain, that Holmes could not now assert a claim for damages ...


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