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ANDERSON APPEAL. (06/28/62)

June 28, 1962

ANDERSON APPEAL.


Appeal, No. 281, Jan. T., 1961, from order of Court of Common Pleas No. 3 of Philadelphia County, March T., 1959, No. 160, in the matter of Delaware River Bridge between Packer Avenue, Philadelphia, and Gloucester City, New Jersey, and its approaches. Order affirmed.

COUNSEL

Augustus R. Sigismondi, with him Richard D. Solo, for appellant.

Morris Duane, with him Henry T. Reath, John B. Felton, Francis W. Sullivan, and Duane, Morris & Heckscher, for appellee.

Frank Edward Roda, Special Assistant Attorney General, with him David Stahl, Attorney General, for Commonwealth, amicus curiae.

Before Bell, C.j., Musmanno, Jones, Cohen and Eagen, JJ.

Author: Cohen

[ 408 Pa. Page 180]

OPINION BY MR. JUSTICE COHEN

By this appeal, our Court is called upon to decide the important issue of whether or not appellee, Delaware River Port Authority (Authority), may claim the Commonwealth's immunity from liability for consequential damages resulting from its activities and thereby defeat appellant property owner's petition for the appointment of a board of view to assess such damages.

According to the stipulation of facts by the parties, appellant is the owner of a dwelling located in South Philadelphia. By various resolutions adopted in 1954, Authority condemned certain property including land adjoining that owned by appellant in conjunction with the construction of the Walt Whitman Bridge connecting Philadelphia and New Jersey. None of appellant's land, however, was taken by condemnation nor was any of it occupied or used by Authority. Since it is agreed that there has not been any physical taking of land belonging to appellant, any injury or damage to her property is solely consequential in nature.

The bridge which has been erected at right angles to the street rises approximately twenty feet above the roadway and runs the entire length of appellant's property, only a distance of about two feet from her property line. It is clear that as a result of the construction, appellant has sustained a loss of light, air and view.

Appellant petitioned the Court of Common Pleas No. 3 of Philadelphia County for the appointment of a board of view to assess damages. Notwithstanding Authority's answer contesting appellant's right to have viewers appointed, the court entered a decree appointing a board of view to determine the damage allegedly sustained by appellant. Authority thereupon filed a petition for reargument which was granted. Subsequently, the Commonwealth was permitted to participate amicus curiae in the argument.

[ 408 Pa. Page 181]

Following reargument, the court below reversed itself and entered a decree dismissing appellant's petition for appointment of viewers and quashed the proceedings on the ground that the title of the Act was defective and did not contemplate compensatory damages. From this decree appellant appeals to our Court.

Appellee Authority was formed by a compact between the Commonwealth of Pennsylvania and the State of New Jersey which was consented to by the Congress of the United States. The compact, authorized by Act of the Pennsylvania Legislature, August 10, 1951, P.L. 1206 (amending Act of June 12, 1931, P.L. 575, as amended by Act of July 18, 1951, P.L. 1010), 36 PS ยง 3503, had as its purpose the creation of a joint authority to construct, develop and maintain facilities in the ports of Philadelphia and Camden.

It has long been the established rule that absent an act of the legislature expressly imposing liability, the Commonwealth is not liable for consequential damages to land where there is no actual physical taking. Ewalt v. Pennsylvania Turnpike Commission, 382 Pa. 529, 115 A.2d 729 (1955); Brewer v. Commonwealth, 345 Pa. 144, 27 A.2d 53 (1942); Heil v. Allegheny, 330 Pa. ...


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