Newtown Township Road

62 Pa. Super. 519, 1916 Pa. Super. LEXIS 463

• Court: Superior Court of Pennsylvania
• Decided: March 1, 1916
• Docket: Appeals, Nos. 305
• Status: Published

Opinion

Opinion by

Kephart, J.,

The report of the jury of view signed by two of the jurors, one having died in the meantime, was filed December 28, 1912. This report was in favor of the vacation of the section of the highway in Newtown Township. Exceptions were filed to this report February 17, 1913, which on June 25, 1913, were dismissed and the report confirmed. At the same time, on petition, the court appointed reviewers, March term, intervening between the day of filing the report and the appointment of the reviewers. The court was without power to entertain the petition for the appointment of reviewers, or to confirm their report. The learned judge so held as his opinion states: "As a proposition of law, this contention cannot otherwise than be sustained. The 25th section of the Act of June 13, 1836, P. L. 559; Stewart’s Purdon, Vol. IV, page 4231, P. L. 88, requires the petition for review to be filed ‘at or before the next term of the said court after the report upon the first view.’ This is mandatory. Road in Indiana Co., 51 Pa. 296; and this notwithstanding exceptions to the report of the view are pending, Franconia Township Road, 78 Pa. 316; and orders nunc pro tunc will not avail to avoid the statute: Road in Lackawanna, 112 Pa. 212.” This court recently held under similar circumstances in an opinion by President Judge Rice, In re Road in Yoder Township, 61 Superior Ct. 394, that the appointment of reviewers on a petition filed with one term intervening was too late.

But the court below found exceptional matters in behalf of its decree, which the appellee urges should be sufficient to prevent the operation of the statute; in that the report of the jury of view was based on an erroneous idea of the facts and the exceptions to that view were dismissed under a misconception of the questions there involved. These questions raised by the exceptions were failure to designate in the original petition the character of the road to be vacated, that a juror died before the meeting of the jurors were concluded, and a failure to designate the termini, together with the misstatement of fact above noted. When the attention of the court on June 25,1913, was again called to the exceptions with a statement of the questions involved, the petition for review was presented. The court in its opinion says: “We then understood that if the court dismissed the exceptions to the report as to the Newtown section and appointed a jury of review, and also appointed a jury of view on the Radnor section (being the other part of this highway in Radnor Township) the proceedings would go forward. While counsel did not agree to waive any rights of the parties, yet it was our understanding that the action of the court was to have the effect to dispense with all objections to prior proceedings.” Counsel for the petitioner died before this matter was finally concluded and the court says “if he joined in an arrangement by which his exceptions were to be dismissed in return for the entertainment of his petition for a review, we think the litigation should go forward on this basis.” On October 18, 1913, a petition to quash the entire proceedings for the reasons assigned in the exceptions was presented but the court being of the opinion that the agreement of counsel should control denied this request. Notwithstanding the merit of this situation it cannot prevail against the operation of the mandatory language of the act of assembly particularly where one of counsel urges that no agreement exists.

The report of the jury of view having been confirmed if the matters alleged in the petition to quash raised questions of fact, of course, this petition would have been properly refused as said in Crescent Township Road, 18 Pa. Superior Ct. 160: “No irregularity in the proceedings which did not go to the jurisdiction of the court to make the decree, or present upon the face of the order to open the road an insuperable barrier to its execution can now be considered”: Cassville Borough Road, 4 Pa. Superior Ct. 511. If the allegations were apparent on the face of the record the court could quash the entire proceedings though after the term at which they were confirmed: Crescent Township Road, 18. Pa. Superior Ct. 160. It is apparent from the proceedings instituted in Radnor Township in connection with the same road, and the state of the record in the present proceeding in Newton Township, that the court below was making an effort to harmonize the matter so that a jury could intelligently report on the entire road. If the court was led into error by an arrangement of counsel which is now disavowed and was induced by the circumstances here stated to sign a decree which otherwise would not have been signed, the court where no intervening rights have appeared and no one may be injured has an inherent power to correct any abuse which may flow from such action. As was stated by Mr. Justice Williams In re County Bridge, Nescopeck Township, 120 Pa. 288: “The contention of the plaintiff in error is that the court had no power to make the order vacating or striking off the approval of the report. He argues that the endorsement of the approval of the court was a judgment rendered by the Quarter Sessions, and that the power of the court over it ended with the term in which it was entered. ......We have considered this question from the standpoint of the plaintiff in error......It may well be doubted whether orders of approval and confirmation made in the routine work of the sessions, without notice to the parties to be affected thereby, ought to be regarded as having the same degree of solemnity as judgments regularly entered after notice or on warrant of attorney.” In that case the order approving the report was set aside after the lapse of many years. As the matter will now stand the section of the road in Radnor Township is open for travel and the section of the road in Newtown Township is closed, a condition which as the court below says it was not the intention to create; but this court cannot vacate an order dismissing the exceptions or give the relief urged by appellee as this appeal and the assignments of error before us are based on «the action of the court on the petition for review. We sustain the first and second assignments of error. The decree confirming the report of reviewers is reversed without prejudice. The appeal to No. 305, October Term, 1914, being from an interlocutory order is quashed at the cost of the appellants.