Appeal of the Borough of Verona , 1897 Pa. Super. LEXIS 248 ( 1897 )

Opinion by

Reeder, J.,

This is an appeal from the decree of the court below dismissing the exceptions to an award by a jury of viewers appointed to assess damages for the opening of East Railroad avenue in the borough of Verona, Allegheny county.

No disputed questions of fact can be considered by us upon appeal. If upon the facts' in the case the defendant borough was aggrieved,' the remedy specifically designated by the act of May 26, 1891, was by an appeal and trial by jury. The only question, therefore, that we can consider is, whether there was a prior adjudication of the petitioner’s right to recover damages by which he was concluded.

It appears from the depositions in this case that a petition was presented to the court of quarter sessions of Allegheny county in 1887, asking for the appointment of viewers to assess, the damages to Peter Klingensmith’s property between Grant and James streets, in this borough, whereupon viewers were appointed who awarded to Peter Klingensmith certain damages, and found that no other property holder had sustained damages by reason of the opening of said East Railroad avenue.

The ordinance of July 26, 1886, by winch East Railroad avenue was declared open for public travel, it appears, was never published and no notice of such ordinance ever served upon the petitioner or any other of the owners of lots or their predecessors in title who are interested in this and the subsequent ten cases. No notice of the appointment of viewers for the assessment of damages to Peter Klingensmith was ever'given to any property owners except Klingensmith. There is some testimony of notice by handbill and the record shows only a form of notice —no proof of posting it or of service upon any of the parties in interest here. The petition shows that the viewers were appointed for the mere purpose of assessing damages to Klingensmith by reason of the opening of East Railroad avenue. Therefore under the circumstances, no party to these proceedings can be concluded from further action, or have his rights, prejudiced by any action of the viewers .that was taken upon that petition.

Decree is affirmed at the costs of the appellant.