383 Pa. 99 | Pa. | 1955
Opinion by
TMs appeal under the Act of March 5, 1925, P. L. 23, challenges the jurisdiction of the court below to appoint a Board of Viewers under the circumstances hereinafter described.
Appellees’ motion to quash the appeal on the ground that the question of jurisdiction was not properly raised in the court of first instance will be denied because, although it may, perhaps have been raised there only indirectly, it is important in the interest of the expedition of these protracted proceedings to decide the question at this time.
The claim of the Estate of Lewis W. Holmes against the County of Allegheny arises out of the widening of West Fifth Avenue in the City of McKeesport, which widening is a public improvement by the County authorized by the Pennsylvania Public Utility Commission. By proceedings in the Court of Common Pleas of Allegheny County at No. 109, July Term, 1950, the County petitioned for and received an appointment of a Board of Viewers to determine and award damages to the owners of property taken, injured, or destroyed by the widening. Holmes was the owner of a parcel of land on the southerly side of West Fifth Avenue and house and cottage erected thereon. As a result of the improvement 10 feet of the front of his lot were taken for right of way and in addition 1136 square feet were occupied for slope easement which incidentally resulted in the demolition of the house fronting on the Avenue. In the report of the Board of Viewers filed in July, 1950, Holmes was awarded damages in the
In December, 1950, shortly after those proceedings had terminated, the earth commenced to slide on a part of the Holmes property which had not been actually taken by the County, thereby causing damage to the cottage located on the rear of the lot. Holmes accepted the $8,000 which had been awarded him but without prejudice to his right to recover for the damages to his property remaining after the taking. In 1952, at No. 1821, October Term 1952, he petitioned the Court of Common Pleas of Allegheny County for a Board of Viewers to ascertain and award compensation to him for the damages suffered “by reason of the removal of the support necessary to the premises remaining after the taking by the widening of a portion of West Fifth Avenue, and the consequent taking of petitioner’s lands, property or materials.” His petition averred that the weakening of the support and the resultant injury and damage to the property were the necessary and unavoidable consequences of the non-negligent performance of the West Fifth Avenue improvement. The court granted the prayer of the petition and appointed a Board of Viewers, whereupon the County moved the court to vacate its order and to dismiss the petition on the ground that it must be conclusively presumed that the original award included all damages recoverable in consequence of the act of eminent domain, that Holmes could not now assert a claim for damages for an injury alleged to have been a consequential result of the act of eminent domain, and that no Board of Viewers had any jurisdiction to hear and determine such a claim. The executors of Holmes’ Estate, he having died in the meantime, filed an answer averring that the injury now complained of was too speculative and remote at the time of the origi
It should be immediately apparent, in view of all our decisions on the subject, that the present appeal under the Act of 1925 is limited to a determination of the question as to whether the court below had jurisdiction to make such appointment; it cannot raise in a preliminary way the right of the claimant to recover on his cause of action but only the right to have his cause heard and determined even though it might ultimately be decided that he is not entitled to the relief which he seeks.
It is abundantly clear, therefore, that, as previously stated, the court had jurisdiction to appoint the Board of Viewers. Whether, under the particular facts and
With these rival contentions the court, on the present appeal, is not concerned; they go to the merits of the controversy, not to the question of the jurisdiction of the court below, and they will presumably be finally determined in' the course of the-proceedings there instituted.
The appeal raising the question of jurisdiction is dismissed and the record is remitted with a procedendo.
Shelton v. Lower Merion Township, 298 Pa. 471, 148 A. 846; Sun Ship Employees Association, Inc. v. Industrial Union of Marine and Shipbuilding Workers of America, 351 Pa. 84, 40 A. 2d 413; Zerbe Township School District v. Thomas, 353 Pa. 162, 44 A. 2d 566; Bell Telephone Company of Pennsylvania v. Philadelphia Warwick Company, 355 Pa. 637, 50 A. 2d 684; Zlotziver v. Zlotziver, 359 Pa. 84, 58 A. 2d 334; Witney v. Lebanon City, 369 Pa. 308, 85 A. 2d 106.