West Liberty Avenue, 70 Pa. Super. 348

West Liberty Avenue

70 Pa. Super. 348 | Pa. Super. Ct. | 1918

Opinion by

Trexler, J.,

There are two assignments of error; the first is directed to the action of the court in dismissing the exceptions filed to the report of the board of viewers, and confirming the report absolutely.

This throws no light on the particular error complained of. There were ten exceptions including numerous subdivisions filed to the report of the viewers. “As to the dismissal of which one of them is error alleged? We cannot tell. In addition to this, the exceptions dismissed are not quoted in the assignment of error”: Barr Township Road, 29 Pa. Superior Ct. 203. This is a clear violation of Rule 14 of this court. The reasonableness of this rule is discussed at some length in the above case, and its wisdom fully vindicated.

The second assignment is the discharging of a rule entered on the petition of the appellant requiring the peti*351tioner to show cause why the testimony taken before the viewers should not be filed. Under the Act of May 16, 1891, P. L. 71, it was decided that the duty of the court to review all exceptions filed was not to proceed de novo and consider all the testimony taken and make a new award: Smith’s App., 179 Pa. 630. The practice has not been changed by the Act of June 23, 1911, P. L. 1123. The ninth section of the latter act provides what shall be set forth in the report of viewers, and makes no' reference to the testimony. The eighth section provides for a stenographic report of the testimony, but this is when in the opinion of the board it is desirable. There is nothing in the act which makes the testimony a necessary part of the report.

We might dismiss the case without any further reference to the exceptions filed by the appellant in the court below. We will, however, refer to them briefly.

The viewers found that the defendant’s property was especially benefited. There is nothing before us to impeach that finding: Beechwood Avenue, 194 Pa. 86.

The fact that twenty feet in the center of the street has heretofore been improved does not prevent an assessment for the remaining portion of the avenue. Such an assessment is recognized in Philadelphia, to use, v. Ehret, 153 Pa. 1.

The petition asks that viewers be appointed to assess the benefits, and the word “damages” is not used; whether the order appointing the viewers directed the assessment of damages does not appear from the printed book. As no damages were claimed by the exceptant and the payment of damages did not affect his assessment, no harm was done. Thus we held in Levi v. Oakmont Borough, 44 Pa. Superior Ct. 631, that the inclusion of the word “grading” in the petition, although the court had no jurisdiction as to grading, was not fatal as it appeared no grading except such as was incidental to the improvement was done.

*352The objection to the item of the cost of a sewer may be answered in the same way, as the sewer was paid for by the City of Pittsburgh.

The viewers were right in holding that a prior viewers ’ report confirmed absolutely was conclusive of the validity of the ordinance under which proceedings were had. It was a judgment of the court and could not be attacked collaterally.

All the assignments of error are overruled and the order of the court is affirmed.