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FULLER ET UX. v. COMMONWEALTH. (01/16/62)

January 16, 1962

FULLER ET UX., APPELLANTS,
v.
COMMONWEALTH.



Appeal, No. 227, April T., 1961, from order of Court of Common Pleas of Greene County, June T., 1959, No. 96, in case of Levi A. Fuller et ux. v. Commonwealth of Pennsylvania. Order affirmed.

COUNSEL

W. Robert Thompson, with him R. Wallace Maxwell, and Thompson and Baily, for appellants.

Robert W. Cunliffe, Assistant Attorney General, with him John R. Rezzolla, Chief Counsel, and David Stahl, Attorney General, for Commonwealth, appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Flood

[ 197 Pa. Super. Page 223]

OPINION BY FLOOD, J.

When the Department of Highways reconstructed High Street in the Borough of Waynesburg, in 1956, the grade of the roadway in front of the plaintiffs'

[ 197 Pa. Super. Page 224]

    property was lowered and a new curb was laid below the existing pavement. In the course of laying the curb the contractor broke a part of the pavement, extending at one point eight to ten inches back from the curb. As a result, the plaintiffs were ordered by the borough authorities to make their pavement safe and were compelled to have a new pavement laid at their own expense.

The plaintiffs brought proceedings against the Commonwealth before a board of view. After the board denied recovery, they appealed to the court of common pleas and recovered a verdict for $500, but the court entered judgment n.o.v. in favor of the Commonwealth upon the ground that there was no taking of the plaintiffs' property.

Since there can be no recovery from the Commonwealth for damages resulting merely from a change of grade this holding seems obviously correct. Burkholder v. Commonwealth, 347 Pa. 478, 32 A.2d 745 (1943). The Commonwealth did not enter upon the plaintiffs' property except to build a new curb at the new grade, which would seem to constitute a benefit to them. Cf. Burkholder v. Commonwealth, supra. Moreover, unless there was a taking beyond the line of the roadway reconstructed by the Commonwealth, the breaking of their pavement is merely consequential damages for which the Commonwealth cannot be held liable. Culver v. Commonwealth, 346 Pa. 262, 29 A.2d 531 (1943); Moyer v. Commonwealth, 183 Pa. Superior Ct. 333, 132 A.2d 902 (1957).

Plaintiffs contend, however, that the plans for the reconstruction of High Street approved by the Governor on April 9, 1956, unlike previous plans, called not merely for a thirty-six foot roadway, but for a fifty-nine foot right of way which included plaintiffs' entire sidewalk up to the houseline, ...


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