Opinion
October 1, 1934.
November 26, 1934.
Highways — Damages — Assessment — State highways — Appointment of viewers — Act of May 1, 1929, P. L. 1054.
1. Under the Act of May 1, 1929, P. L. 1054, which authorizes the department of highways of the State to enter into contracts with cities for the improvement and construction of certain highways, and provides that the cities may, in the manner provided by law for the paving and improvement of their highways, provide for the pavement of their share of the cost, by an equal assessment on the front-foot rule against the owners of property abutting on the line of the improvement, viewers will be appointed upon petition of the city to assess the abutting property owners their share of the cost. [276]
Judgments and decrees — Res judicata — Order vacating appointment of viewers — Order specifically indicating intent.
2. In this case, an order making absolute a rule to show cause why an order appointing viewers should not be revoked and all proceedings thereunder vacated, was held not to be res judicata where the order specifically indicated it was not to be regarded as res judicata and stated that the petition and proceedings, brought under the Act of May 16, 1891, P. L. 75, must be brought under the Act of May 1, 1929, P. L. 1054. [275-6]
Argued October 1, 1934.
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeal, No. 216, March T., 1934, by Robert S. Chess et al., from order of C. P. Allegheny Co., April T., 1934, No. 3850, in re petition of City of Pittsburgh for viewers in improvement of Noblestown Road. Order affirmed.
Petition for appointment of viewers.
Petition for vacation of appointment of viewers and to set aside proceedings thereunder.
The facts are stated in the opinion of the lower court, by MUSMANNO, J., which was as follows:
At No. 2294, October Term, 1932, by order of court, viewers were appointed to ascertain the cost and expenses arising from the grading, paving and otherwise improving Noblestown Road from the east curbline of Obey Street to a point near the intersection with the Baldwin Road, City of Pittsburgh, and to assess benefits thereunder. The viewers so appointed did their work and filed a report. On June 20, 1932, a petition was filed by the interested parties (the same persons who are now petitioners in the present case) asking for the revocation of that appointment of viewers and the vacating of all proceedings thereunder. That petition set forth that the improvement of Noblestown Road was a continuation of a state highway entering and running through the City of Pittsburgh and was an improvement made pursuant to the provisions of the Act of Assembly approved May 1, 1929, P. L. 1054, and pursuant to the terms of an agreement between the City of Pittsburgh and the state highway department of Pennsylvania, dated February 9, 1931, agreement was not referred to in the petition for viewers at No. 2294, October Term, 1932.
The court considering the petition for revocation decided in favor of the petitioners on the ground that the petition for viewers did not recite the contract between the Commonwealth and the City. Furthermore, that the proceeding was undoubtedly controlled by the Act of 1929 rather than the Act of May 16, 1891, P. L. 75, recited in the original petition for viewers.
The City then, at No. 3850, April Term, 1934, filed another petition for appointment of viewers to ascertain the cost, expenses, etc., arising from the grading, paving, curbing, etc., of the same street. In this petition the city averred that the work was done by the City of Pittsburgh, by virtue of and in pursuance of its ordinance No. 262, approved May 25, 1931, of record in ordinance book, volume 43, page 652, ordinance No. 50, approved February 5, 1931, recorded in ordinance book, volume 43, page 49, and ordinance book, volume 44, page 1, all of which are a part of the petition. In addition thereto, the City of Pittsburgh averred that, by authority of its ordinance No. 28, approved January 28, 1931, of record in ordinance book, volume 43, page 425, it entered into an agreement with the Commonwealth of Pennsylvania, through certain articles of agreement dated February 9, 1931, whereby the Commonwealth of Pennsylvania agreed, inter alia, to pay a certain amount to the City of Pittsburgh in the above improvement. These ordinances above recited provide, inter alia, that the cost, damages and expenses of the same shall be assessed against and collected from properties especially benefiting thereby, in accordance with the provisions of the acts of assembly of the Commonwealth of Pennsylvania relating thereto and regulating the same. The improvement having been completed and accepted by the Commonwealth of Pennsylvania and the City of Pittsburgh, the Commonwealth having paid its share of the cost of the improvement as provided in the contract, the City of Pittsburgh, having paid the balance of the contract for said improvement, sought the appointment of viewers to assess the abutting property owners their share of the cost of said improvement.
Under this petition viewers were appointed. Robert S. Chess et al., petitioners in the present action before the court, now ask for a revocation of the order made March 23, 1934 [appointing viewers]. The present petitioners represent that the order entered by Judge MacFARLANE at No. 2294, October Term, 1932, disposes of the entire matter in controversy and that the city may not, after that disposition, again petition for the appointment of viewers, the court already having decided that viewers may not be appointed for purposes alleged in the petition of the City of Pittsburgh. In a word, Robert S. Chess et al. maintain that a final adjudication of this litigation has been made and that the decision of Judge MacFARLANE is res adjudicata of the entire transaction.
But it would appear from a reading of Judge MacFARLANE'S opinion that he specifically declares that it was not to be regarded as res adjudicata. He said:
"We do not think that the recital in the petition of the Act of May 16, 1891, P. L. 75 and its supplements and amendments is fatal to the proceeding. The order appointing the viewers is general. The fault lies in the petition itself. It does not bring in all of the ordinances involved. The proceeding was undoubtedly under the contract between the Commonwealth and the city under the Act of 1929.
"We have tried without success to find a way to save the proceedings before the board. Our opinion is that the petition and proceedings must be under the Act of 1929."
It will be observed that he pointedly said that the petition and proceedings must be under the Act of 1929, but instead of making a final adjudication he indicates what the next step shall be: that step has now been taken by the City of Pittsburgh in the petition for the appointment of viewers to assess benefits for and arising from the improvement in question.
The Act of May 1, 1929, P. L. 1054, under the authority of which the improvement was and because of its provision the city has petitioned for the appointment of viewers, declares:
"Said cities may, with or without petition of abutting property owners in the manner provided by law for the paving and improvement of their streets and highways, provide for the payment of their share of the cost of any original paving, construction or improvement of any portion thereof, and the entire cost or any portion thereof of any additional width not thus paid for by the Commonwealth by an equal assessment on the foot-front rule, including the expenses of the necessary drainage, against the owners of property abutting on the line of the improvement, or the city may pay the entire cost of any such improvement, construction or reconstruction not thus paid by the Commonwealth."
The only manner provided by law for the assessing of the pro rata share of the costs against the individual property owners affected is by the appointment of viewers.
The petition for revocation of the appointment of viewers must therefore be refused.
Petition for vacation of appointment of viewers and to set aside proceedings thereunder, refused, GRAY, PATTERSON and MUSMANNO, JJ. Robert S. Chess et al. appealed.
Error assigned was refusal of petition to vacate appointment of viewers, quoting record.
Owen S. Cecil, for appellants.
Wm. Alvah Stewart, Jr., Assistant City Solicitor, with him Ward Bonsall, City Solicitor, for appellee.
We concur in the order made by the court below and since in the opinion filed satisfactory reasons are set forth in support of the order, no further discussion is required.
Order affirmed.