Appeal, No. 109, April T., 1957, from order of Court of Common Pleas of Allegheny County, Oct. T., 1952, No. 1821, in re petition of Lewis W. Holmes for appointment of viewers to determine and award damages to him for property taken, injured or destroyed by the widening of a portion of West fifth Avenue, in the City of McKeesport. Order reversed.
Francis A. Barry, Assistant County Solicitor, with him Nathaniel K. Beck, County Solicitor, and John W. Manula, Assistant County Solicitor, for appellant.
Ralph D. McKee, Jr., with him Alter, Wright & Barron, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
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At No. 109 July Term 1950, in the Court of Common Pleas, the County of Allegheny petitioned for the appointment of viewers to determine and award damages
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to the owners of property taken, injured or destroyed by the widening of West Fifth Avenue in the City of McKeesport. Lewis W. Holmes was the owner of a lot fronting 30 feet on the southerly side of West Fifth Avenue, on which lot was erected a two-story frame dwelling fronting on the Avenue. At the rear of the lot, adjoining an alley, was a one-story frame cottage. The lot was designated in the viewers proceedings as V-170. The plans show that the lot had a depth of 109 feet, and a total area of 3236 square feet. As a result of the street widening, 10 feet of the front of the lot was taken for right-of-way. In addition, 1136 square feet was occupied for slope easement, with the top of the slope running from a point on the westerly sideline of the lot 35.14 feet south from the right-of-way line to a point on the easterly sideline of the lot 40.57 feet south from the right-of-way line. The slope line ran through the middle of the dwelling fronting on West Fifth Avenue, resulting in its total demolition. The cottage at the rear of the lot, 60 feet removed from the top of the slope line, remained standing. On May 2, 1950, the Board of Viewers viewed the property, and on June 12, 1950, held a hearing. On July 14, 1950, the viewers filed a report in which Holmes was awarded the sum of $8,000.00 as his damages. It was therein stated that the viewers had "estimated and determined the damages for all property taken, injured or destroyed". This report was confirmed absolutely, and no appeal therefrom was taken.
On or about December 5, 1950, earth commenced to slide on the remaining portion of the Holmes lot, resulting in damage to the small house at the rear. On August 26, 1952, Holmes filed a petition at No. 1821 October Term, 1952, asking for the appointment of viewers to ascertain and award compensation to him for damages suffered "by reason of the removal of the support
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necessary to the premises remaining".*fn1 The petition averred that the resultant "injury and damage to said premises was the necessary and unavoidable consequence of the non-negligent performance of said construction". The petition specifically pleaded the proceedings before the Pennsylvania Public Utility Commission wherein the original improvement was authorized, and also the proceedings before the Board of Viewers at No. 109 July Term 1950. The Common Pleas Court granted the prayer of the petition and appointed viewers, whereupon the County moved to vacate the appointment for the reasons that (1) having already prosecuted a claim for damages at No. 109 July Term 1950, the petitioner was barred from asserting a claim "averred to have been a consequential result of the same act of eminent domain"; (2) the award at No. 109 July Term 1950, was conclusively presumed to include all damages; and (3) no Board of Viewers had jurisdiction. Upon presentation of this motion, a rule to show cause was granted. An answer was filed in which it was averred that the injury was not a consequential result of the same act of eminent domain, but "was the necessary and unavoidable consequence of the non-negligent performance of the construction"; that the injury complained of was "too speculative and remote" at the time of the original proceedings to have been a proper element of damage therein; that ...