170 A. 467 | Pa. Super. Ct. | 1933
Argued October 20, 1933. On July 10, 1925, the City of Philadelphia passed an ordinance authorizing an agreement with the Reading Company for the elimination of certain grade crossings in the City of Philadelphia, the cost of which was to be borne equally by the two parties. In accordance with said ordinance the Board of Surveyors adopted a plan, according to which the thirty-seven foot frontage of the plaintiff's property on Ridge Avenue, to a varying depth, beginning at nothing on the north line, to one foot ten and one-eighth inches at the south line, was condemned. The matter involved was about thirty square feet of land and the cost of *287 rebuilding the wall, which was part of a modern bakery building.
Pursuant thereto the city entered its bond on November 29, 1925 to cover the damages and on March 17, 1926 served three months' notice upon claimant of its intention to take a portion of his property, both steps being in accordance with Article 3 of the ordinance. On October 7, 1926, the city filed a petition for the appointment of a board of view, which duly filed its report on May 25, 1928, awarding damages to plaintiff in the sum of $5,311 and which report was duly confirmed on July 16, 1928. On June 18, 1928 the city filed an appeal. On January 5, 1931, a jury was sworn in the court of common pleas and a verdict for plaintiff was rendered in the sum of $200. On motion by plaintiff a new trial was granted. On February 24, 1933, the case was again tried before a common pleas jury and resulted in the present award of $2,500. The city, having presented a point for binding instructions, filed a motion for judgment non obstante veredicto, which motion was granted and judgment was entered in favor of the defendant, from which judgment this appeal was taken.
Between the date of the first trial in January, 1931, and the second trial in February, 1933, the councils of the City of Philadelphia passed an ordinance approved July 11, 1932, entitled "An ordinance to authorize the buildings on premises known as Nos. 5152-54-56 Ridge Avenue, in the Twenty-first Ward, to remain in their present position," which ordinance was in part as follows: "Section 1. The Council of the City of Philadelphia ordains, That the buildings on the premises aforesaid be allowed to remain in their present position undisturbed; and it is hereby directed that they shall so remain until such time as the wants of business and travel make it necessary to move back the building fronts to the new line of the street; suitable action to be taken to meet the new conditions and requirements *288 when they arise and when the need for setting back said building fronts has been duly certified to Council by the Director of Public Works." The justification of the city council for the passage of this ordinance is found in the ordinance itself, wherein it states, "And Whereas, The wants of business and travel on said Ridge Avenue do not at the present time require the removal of the said projections and the setting back of the buildings to the new line; And Whereas, the Act of the General Assembly of the Commonwealth of Pennsylvania, of December 27, 1871, P.L. 1390 (1872) authorizes such buildings to be left until the wants of business and travel require their removal."
The Act of December 27, 1871, supra, (
If the report of the jury of view did not affirmatively disclose that it had excluded from its report damages for a building or buildings extending out upon the sidewalk a distance not exceeding two-thirds of the width, we must conclude that they had considered the damages to the building or buildings within the lines of the original condemnation. Their duty as a jury of view was to assess damages for land and buildings within the lines and grades of Ridge Avenue as made by the board of surveyors although under said jury of view they may have excluded from their consideration of damages such portions of the land and buildings as came within the classifications of section 2. Their failure to state in their report that they had exercised the alternative allowed by the section can lead to but one conclusion, and that is that they had taken into consideration in the assessment of damages the land and buildings which did not exceed two-thirds *290 of the sidewalk distance. The award by the jury of view of damages in the sum of $5,311 shows clearly that they did not exclude the land in question, because if they did exclude, no damages whatever would have been sustained. All considerations of fact and policy were to be passed upon by the jury of view and when the appeal was taken to the common pleas the jury in that court was confined to but one question and that alone of assessing the damages for the taking.
In an appeal from an award of the jury of view to common pleas, the proceeding is de novo only on the subject of the amount of damages: Orange Home v. Montgomery Co.,
The second question involved relates to the passage of the ordinance of July 11, 1932 and its effect upon the appellant's right for damages. An examination of this ordinance clearly shows that it was not a repeal of the original ordinance of July 10, 1925 but merely suspended any action on the part of the city until such time as the wants of business and travel would make it necessary to move back the building fronts to the new line of the street. This clearly can not be regarded as a repeal ordinance of the original condemnation of the property of the appellant within the lines of the proposed street. Upon that proposition alone we feel that the judgment of the lower court should be reversed. But, granting that it was a repeal ordinance, we do not feel that the repeal ordinance was adopted within the time required by the Act of May 16, 1891, Sec. 7, P.L. 75 (53 PS 403) which provides: "In case any such municipal corporation shall repeal any ordinance passed, or discontinue any proceedings taken, providing for any of the improvements mentioned in the preceding sections prior to the entry upon, taking, appropriation or injury to, any property or materials, and within thirty days after the filing ofthe report of viewers assessing damages and benefits, the said municipality shall not thereafter be liable *291 to pay any damages which have been, or might have been, assessed, but all costs upon any proceeding had thereon shall be paid by said municipal corporation, together with any actual damage, loss or injury sustained by reason of such proceeding." (Italics ours.) This section applies as there was no entry upon, taking, appropriation or injury to any property but under the terms of this act the repeal must be passed within thirty days after the filing of the report of viewers assessing damages and benefits. In the instant case the appeal was filed from the report of viewers assessing damages on June 18, 1928, a trial before a jury in common pleas was had in 1931, and no repeal ordinance was passed until July 11, 1932. Clearly, the action of the city council in passing a repeal ordinance in 1932, after a jury of view and a trial in common pleas, is not within such time as required by the Act of 1891, supra.
Prior to the passage of the Act of 1891 the rule as found in Moravian Seminary v. Bethlehem Boro.,
We have given very earnest and serious consideration to the cases cited by appellee and particularly the cases upon which the court below relied in its opinion in sustaining the motion for judgment non obstante veredicto and shall attempt to differentiate them from the case at bar.
In Myers et al. v. South Bethlehem,
In Moravian Seminary v. Bethlehem, supra, it was held that the Act of May 16, 1891, Sec. 7, P.L. 78, did not apply to a case where the viewer's report was filed in the quarter sessions on April 13, 1891, and an appeal to the common pleas was filed on April 26, 1891, and was pending when the act was passed.
In Franklin Street,
In Sensenig v. Lancaster Co.,
In Pittsburgh's Petition,
Summarizing our findings, we conclude, (1) that the filing of the award of damages by the original jury of view did not exclude the land in question; (2) that the ordinance of July 11, 1932 is not a repeal ordinance; and (3) assuming that the ordinance of July 11, 1932 was a repeal ordinance, it was not enacted within thirty days after the filing of the award of the jury of view as required by the Act of May 12, 1891.
The judgment of the court below is reversed and judgment is herewith entered for the plaintiff on the verdict on payment of the jury fee. *294