Appeals, Nos. 164 and 165, March T., 1964, from orders of Court of Common Pleas of Allegheny County, April T., 1964, Nos. 2580 and 2581, in cases of Pittsburgh Railways Company v. Port of Allegheny County Authority; and petition of Port of Allegheny Authority for appointment of viewers to determine and assess damages re condemnation of Pittsburgh Railways Company's transportation system. Order of court below, appeal No. 164, affirmed and complaint dismissed; orders of court below, appeal No. 165, as modified, affirmed. Petition to recall record and reverse order of court below in No. 165 denied January 15, 1965.
Clyde A. Armstrong, with him C. M. Thorp, Jr., Clyde W. Armstrong, and Thorp, Reed & Armstrong, for appellant.
William H. Eckert, with him William B. Mallin, C. Arthur Wilson, Jr., and Eckert, Seamans & Cherin, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE O'BRIEN
Appellant, Pittsburgh Railways Company, appeals from the refusal of the court below to grant a preliminary injunction in an equity action to enjoin the appellee, Port of Allegheny Authority, from filing its petition for condemnation, and from making its proposed deposit with the Court.*fn1 Pittsburgh Railways Company also appealed from the orders of the court below (1) appointing viewers to determine and assess damages by reason of the condemnation of appellant's property and (2) granting appellee permission to make payment into court of a percentage of damages estimated by it resulting from its exercise of eminent domain.*fn2
The Port of Allegheny Authority was created by and exists under the Second Class County Port Authority Act of 1956, P.L. (1955) 1414, as amended by Act of 1959, P.L. 1266, 55 P.S. § 551 et seq., which creates the Authority as a "body corporate and politic", to "operate for the purposes contained in this Act", which are declared in the Act "to be public uses for which public money may be spent and private property may be acquired by the exercise of the power of eminent domain".
"The Second Class County Port Authority Act authorizes petitioner, [appellee] among other things, to acquire, own and operate an integrated transportation system in Allegheny County, Commonwealth of Pennsylvania, and grants to petitioner [appellee] the power of eminent domain, including but not limited to, the power to condemn by the exercise of its right of eminent domain any transportation system operating entirely within Allegheny County or eighty percentum (80%) of whose revenue vehicle miles for the preceding calendar year were operated within Allegheny County.
"Pittsburgh Railways Company owns and operates a transportation system over eighty percentum (80%) of whose revenue vehicle miles for the calendar year 1963 were operated within Allegheny County."*fn3
The Port Authority, on February 26, 1964, by resolution, condemned Pittsburgh Railways Company's transportation system, consisting of certain named property listed in exhibits*fn4 referred to in the resolution, which property the Port Authority considered useful to its system. The condemnation did not include all Railways' property.
The court below, on February 28, 1964, had before it (1) petition of the Port Authority for the appointment of viewers,*fn5 (2) petition of the Port Authority for the payment of money into Court,*fn6 (3) petition and exceptions of the Pittsburgh Railways Company,*fn7 (4) complaint in equity of Pittsburgh Railways Company.*fn8 counsel for the parties presented extensive oral argument. There was no evidence presented, the record consisting of the above pleadings or papers in the nature thereof, being sworn to and containing affidavits. At the conclusion of arguments, the court entered the orders from which these appeals were taken by the Railways company.
Railways, in briefly summarizing the appeals being considered, says: "An Authority condemns an integrated transportation system but excludes many items of property in actual use in the system's operation. Moreover, it condemns corporate records of the condemnee completely unrelated to operation and maintenance of the system. Upon deposit in Court by the condemnor of 75% of its so-called damage estimate, unrelated to actual damages, and without securing payment of damages, the condemnor is awarded possession. The ...