Appeal, No. 188, Jan. T., 1959, from order of Court of Quarter Sessions of Franklin County, No. 2 of 1958, in case of Lloyd R. Angle et ux. v. Commonwealth of Pennsylvania. Order affirmed. Proceedings on exceptions by Commonwealth to findings of board of viewers in condemnation. Order entered dismissing Commonwealth's exceptions, opinion by DEPUY, P.J. Commonwealth appealed.
Marshall J. Seidman, Deputy Attorney General, with him Frank E. Roda, Michael Deckman, Jacob J. Kilimnik, Assistant Attorneys General, Michael J. Stack, Jr., Deputy Attorney General, John R. Rezzolla, Jr., Chief Counsel, Department of Highways, and Anne X. Alpern, Attorney General, for appellant.
J. Glenn Benedict, for appellees.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Bok, JJ.
OPINION BY MR. JUSTICE MUSMANNO
The question in this case may be stated quite simply: May the Commonwealth, under the power of eminent domain, take property without timely and adequate notice to the property-owner involved?
On May 11, 1878, the Court of Quarter Sessions of Franklin County, after appropriate preliminary proceedings before a duly appointed Board of Viewers, opened through Quincy Township of that county a public road 30 feet wide.
On August 20, 1924, the Governor of the Commonwealth approved plans for the reconstruction and improvement of this road. The plans which were filed in the office of the Secretary of Highways showed that the Department intended to build within the 30-foot strip a cement pavement 16 feet wide with 5-foot berms or shoulders on either side, thus making the overall width of the travelled portion of the highway 26 feet. However, parallel to the outer margins of the 30-foot strip, there appeared on the plans some pencilled lines which suggested that at a future time the Commonwealth might desire to widen the road to 50 feet. The space between the pencilled projections carried the words: "Ultimate Right of Way."
Nothing was done regarding this envisioned 50-foot Ultimate Right of Way at the time. In fact, when the Highway Department proceeded to construct the road in accordance with the 1924 plans, construction was limited to a 26-foot road within the 30-foot strip limitations.*fn1 So far as the record shows, there was no notice to anyone in the field that there was ever any intention on the part of the Commonwealth to extend its dominion beyond the 30-foot margins.
Thirty-two years after the ideation of the 1924 tentative plan for a 50-foot road, the Commonwealth decided to put the idea into operation. It now filed in the office of the Secretary of Highways, on January 31, 1956, a Governor-approved plan which specified that the road, technically called Legislative Highway Route,
Application 585-3, was to be widened to 50 feet. The pencilled lines which in the 1924 plan were called Ultimate Right of Way now became Required Right of Way. Widened to 50 feet, the road would encroach upon the lands of the plaintiffs in this case, Lloyd R. Angle and ...