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MATTER CONDEMNATION RIGHTS WAY AND EASEMENTS SITUATE BOROUGH WHITE OAK ETC. TERRY L. JORDAN (04/25/83)

decided: April 25, 1983.

IN THE MATTER OF: CONDEMNATION OF RIGHTS OF WAY AND EASEMENTS SITUATE IN THE BOROUGH OF WHITE OAK ETC. TERRY L. JORDAN, ADMINISTRATOR OF THE ESTATE OF DOROTHY L. WILLIAMS, APPELLANT


Appeal from the Order of the Court of Common Pleas of Allegheny County in case of In the Matter of: Condemnation of Rights of Way and Easements situate in the Borough of White Oak, County of Allegheny, Commonwealth of Pennsylvania, by the Borough of White Oak for public street and necessary utility purposes, now or formerly of Dorothy L. Williams, for the relocation of Rankin Road and and the Rankin Road Bridge, No. GD 82-9025.

COUNSEL

Terry L. Jordan, with him Samuel J. Reich, Samuel J. Reich & Associates, for appellant.

Arnold V. Plum, with him W. Richard Booth, Plum & Booth, for appellee.

Judges Blatt, Craig and Doyle, sitting as a panel of three. Opinion by Judge Craig. Dissenting Opinion by Judge Doyle.

Author: Craig

[ 73 Pa. Commw. Page 573]

The executor of the estate of a deceased landowner has appealed from an order of the Court of Common Pleas of Allegheny County which dismissed a proceeding filed to contest actions of the Borough of White Oak taken in furtherance of the relocation of a portion of Rankin Road in that borough.

According to undisputed averments, the borough and its agents in June of 1981 had entered onto the land in question and chopped down and removed some eighteen trees. On March 2, 1982, the borough council adopted a resolution authorizing the filing of a declaration of taking for the acquisition of the land. The borough filed that declaration with the Court of Common Pleas of Allegheny County on May 3, 1982 and, on May 13, gave timely notice of that filing to the executor of the estate on behalf of the landowner.

On June 11, 1982 the estate filed this proceeding in the Court of Common Pleas of Allegheny County against the borough, captioning it as preliminary objections against the declaration of taking, apparently under the Eminent Domain Code,*fn1 but also requesting

[ 73 Pa. Commw. Page 574]

    relief in the form of an injunction to prevent the borough from taking any other action in furtherance of the proposed project "until such time as condemnor is able to come into possession of the land in accordance with the laws of Pennsylvania."

Although the landowner's executor has raised numerous claims concerning the wisdom of the project, those contentions relate to matters outside the record before us and therefore cannot be considered. The actual legal basis for the proceeding rests on the argument that the Borough Code requires that the council should have taken the authorizing action by ordinance, rather than by resolution, so as to afford an opportunity for a hearing before council, as specified by § 1731 of the Borough Code,*fn2 53 P.S. § 46731, governing the "[a]uthority to open streets. . . ."

The common pleas court, treating the matter as involving solely a question of law, proceeded pursuant to argument, without taking evidence, to dismiss the proceeding, concluding that a resolution is sufficient to authorize a declaration of taking because the opening of a street, for which an ordinance is required, is a different matter, which can be attended to separately from the eminent domain taking.

To analyze the issue presented for our review, we can benefit by clarifying some concepts, to avoid confusion.

First, we need not decide whether the councilmanic action here should be labeled as an ordinance or as a resolution. Borough Code § 1731 obviously uses the term "ordinance" to indicate an action of legislative character, and Borough Code § 1006, as amended in 1976, 53 P.S. § 46006, requires every action "of a legislative character", whether it is an ordinance or a resolution,

[ 73 Pa. Commw. Page 575]

    to be published in a newspaper between seven and sixty days before its passage. Hence, the heart of the attack here is that the resolution, not being so treated, was not published in advance of its passage, nor was any opportunity for a street-opening hearing afforded, as is made available under Borough Code § 1731.

Second, in order properly to analyze the issue, we must recognize the distinctions which exist among the concepts of

(1) the power to exercise eminent domain, referring to the grant of power made to a condemnor -- in this case a borough -- with ...


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