Opposition Brief — Babcock Boulevard Land Co. v. Pennsylvania

ee eas. | Office-Supreme Court, U.S.

LHSRARY ao ae FILED

F . Fast LME ik | aed 15. =. , | . SEP 22 1985

, gee | youn F. DAVIS, CLERK

‘te THE as : 2

‘Supreme Court of the Mnited Slates:

October Term, 1965

No. 481

BABCOCK BOULEVARD:LAND COMPANY and

i, RED JACKET, INC.,

| Petitioners

vs.

: COMMON WEALTH OF ‘PENNSYLVANIA

el

+ On Petitions for Writs of Certiorari to and Ap-

_ peals from the Supreme Court of Pennsylvania.

BRIEF IN OPPOSITION TO PETITIONS

FOR WRITS OF CERTIORARI TO AND AP-

PEALS FROM THE SUPREME COURT OF

PENNSYLVANIA

GrorcE R. ietoten Bre

Asst. Attorney General

-Rosert W. CUNLIFFE

. Asst. Attorney General

am. Watteg E. ALESSANDRONI

Attorney General

| Attorneys for Respondent

4 State Capitol

\ | Harrisburg, Pennsylvania

\ ° .

\

: .

‘ % s .

‘TABLE OF CONTENTS

Counter-Statement of Questions Involved. ..

-Counter-Statement: of the Case ....:...... =

Reasons for Denying Writs. _ Dismissing -

Appeals: 206 55% EL 2028S CVS hd

The Petitions for: “Writ of Certiorari

should be denied and a dismissed

. - because no substantial FederaJ question,

exists and’ prior’ decisions: of ‘this Court,

on related questions, indicate that this

Court will leaye:to State Courts the deter-

mination of such issues as nave. been

raised by Petitioners. «..:.:......4.:+%4, ys

In Pennsylvania, the creation of a cul-

de-sac does not constitute the taking of a.

property right from abutters so as to en- -.

- title abutters to compensation ...........:

‘No contract’ existed between the Com- ;

monwealth and Petitioners whereby vow

“tio

have Bell Road remain open at either of its

two terminal points ..............6.... :

- Section 8 of the Pennsylvania Limited :

Access Highway Act. which denies pay-

ment. for consequential damages neither

denies Petitioners due process nor ‘equal |

»

protection of the laws .....0...........

Conclusion ieeacniey Kanes roan ees sae ne pe wees.

TABLE OF CITATIONS .

Casxs : ge He:

—— y. Taylor, 125 US. a6t (1888) tes rs

eo

‘\

a ¢

ie er ‘ is ( i 4

Cincinnati ve Louisville R. R. Co.,- - 223 -U. S..

390 Rich bdhad eds CAR TAL ada bes ebnes¢

Ellis ve. ‘Dixon; 349 U.S. 458, 99 L. Ed. 1231

ORE a OS 1 ye a 29

Ewalt v. Pennsylvania Turnpike Commission, en

382 Pa. 522, 115 A. 24:729 (1955) ..,6... 31

Fay v. Noia, 372 US. 391, 9 L. Ed. 2d 837 :

CRUE: Vivier Fishes crags es ceescagecs 6

: Gardner v. Alleghen Comity, 382 Pa. 88, 114.

A. 2d 491- (1955) ....... tiinaneipesees 26 .

"Gibson v. United States, 166 U.S. 269 (1897) . 10

- Griggs v. County of Allegheny, 369 Uz S. 84, —

¢ 7 L. Bid. Sd SHB (1968) .6j icc see ee. 26

In re’ Melon. Street, 182 Pa. 897, 38 A. 482 _

CORE oes Cay SON s ei pieks See euler 19

Key Realty Company Zoning "Case, 408 Pa. ~

98, 182 A.:2d 187 (1961) ....... ee dewees 19

Marchant v. Pennsylvania Railroad. ,Company,

153 U.S. 380, 38 L. Ed. 751 (1894) Se ey

- Martin.v. Creasy, 360-U.S. 219, 3 L. Ed. 2d

1186 (1959)

- McCrady Case, 399 Pa. 586; “160 A. 24 715 ©

wy arts Sp ea Mere Ade Ma are Are me 17

+ McGee's Appeal, 114 Pa. 470 (1886) Shae 15, 16, 19

| Mey er -v. Richmond, “172 USS.. 82, 43 L. Ed.

974 SEH NG cine eis elves chs cles 7, 9,10

_ Moyer. et ux. vs. Commonwealth, 183 Pa. nate .

. & perior Ct. 322, 132 A. 2d 902 (1957) . 20

- ‘Paul v. Carver, 24 Pa: 207 (1855) ........ 13, 16, 19

. Pennsylvania Coal Company v. Mahon, 260

‘ . U.S: 393, 67 L: Ed. 322 (1922). ......... 27,28 .

Philadelphia Suburban Water Co. v. Pennsyl-

vania Public Utility Commission, 168 Pa. |

_ Superior Ct. 360, 9 A. 2d 46 (1951) . 24

"Pe

Rice v. Sioux City deci Park ae ;

349 U.S. 70, 99 L. Ed. 897 (1955) abcess 29,31

Sauer v. City of New York, 206 US. 536,51. .-

Ts TR EAPW CHOOE. paccdevitescccecs 7, 8, 9, 28

Soldiers and Sailors Memorial Bridge, 308 ;

Pa. 487, 490, 162 A. 309 ...... Srsdets uae 18

. The Pittsburgh & Connellsville R..B. Co. v.

‘Southwest Pennsylvania Railway Co., 1, ;

Pa. 178 (1874) ....2.sccccccsccvcecvars 23, 24

’ Titusville Amusement Co. v. Titusville Iron ~

Works Co., 286 . Pa. 561, 134. <A. 481.

(3096) 20000 Per eae ar eee rere 23

' Transportation Company v. » Omen, 99 US. ;

GED GABA) occ Seetvesbeveeys SasVaus 10

Sraftres: . | an ieee :

Act of 1937, P. L. 774, No. 211, 36 P.S. 652°.. ‘31

_ Act of 1945, May 29, P L. 1108, §8, 36 PS.

SOUEEE Nits seen vekdvendersenehaleeeneas — 25

- CoNSTITUTIONS:

_ Constitution of the United States: |

- Article I, Section 10, Clause 1 .......... 22

Fifth Amendment ............... sosecssg il

Fourteenth Amendment ............ case ee

Constitution of Pennsylvania: |

Article I, Section 10 ........ ace ae weees 21

ii

Counter-Statement of Questions Involved 1.

COUNTER-STATEMENT OF QUESTIONS

* INVOLVED | ©

Does the creation of a cul-de-sac constitute the con-

> demnation of a property right of an abutting’ land

owner when the land owner has not -been deprived of

-> aecess to his property?

Negatived by the Court below.

« Respondent is satisfied with Petitioners ‘statement

* of — No. 2. é

~ ab AOR GE lida

2 Counter-Statement of the Case —

- COUNTER-STATEMENT ‘OF THE CASE

7

These cases are: before your Honorable Court. on

appeal from and Petitions for Writ of Certiorari to

the Supreme Court of Pennsylvania, which affirmed

per curiam an order of the Court of Quarter Sessions

of Allegheny County, Pennsylvania, dismissing Peti-

tioners’ (Plaintiffs below) exceptions to the awards:

of: Boards of Viewers which had not awarded Peti-

tioners any damages in ari eminent domain action in-

stituted by them. |

_ The Petitioners are owners of contiguous tracts of

-. land, situate in Robinson Township, Allegheny Coun-

ty, Pennsylvania. Both tracts front on Perinsylvania

Legislative. Route 765, Section 3-A, a limited access .

highway, known locally as Parkway. West, hereinafter

referred to as Parkway. The entire tract was former-

ly owned by.an individual named George Peat. Prior.

to June 2, 1950, the Parkway. did not exist.° On June_

2, 1950, the Commonwealth of Pennsylvania, acting

through the Department of Highways, condemned a

portion of the land of George Peat for purposes of

constructing the limited access Parkway. “By virtue

of this condemnation, George Peat acquired a claim

for damages against the Commonwealth. On June

' 23, 1952, George Peat settled his claim and executed

an instrumerit entitled “Deed of Release and Quit-

claim, Limited Access Highway.” The release states,

inter.alia, that Peat releases “the Commonwealth or

. any agency or political sub-division thereof for or on

Counter-Statement of theCast «8

account of any taking, injury or destruction of prop-

erty through or by reason of the improvement of the

. said road... or through or by reason of the depriva-

tion of the vigiit of access, egress and ingress to and

from the section of highway, or through or by reason —_—-

of the subsequent maintenance thereof according to

_ the standards of’ the Department of Highways. A

plan showing the proposed improvement is hereto at-

tached and made part of this release”. This plan and .

- release has been made part of the Petition for Writ

of Certiorari, and is tc Petitioners’ Exhibit

_ Number 1A. 3 :

- On December 19, 1962, George Peat conveyed the

entire tract to Babcock Boulevard ‘Land Company, _

hereinafter referred to as Babcock, which in turn con-

veyed that portion now owned by Petitioner, -Red

Jacket Company, Inc., hereinafter referred to as Red

Jacket, to Red Tacket. .

‘The Babcock tract remains unimproved. Red Jacket

has erected on its tract a one-story a

building, wherein it conducts its business. —

The tracts owned by both Petitioners front on Bell ,

‘Road, a township road. Both tracts have unimpeded

access to Bell Road. The access from Petitioners’

property ‘to Bell Road is today the same &s it has

always ‘péen. Petitioners still have access to. the gen-

eral system of streets. There has been absolutely no

diminution of Petitioners’ rights as abutters on Bell

Road. Bell Road runs: generally south to north

_ through the tracts of the Petitioners. Immediately

abutting a portion of the property of Babcock on the _

‘north is ramp “A”, Ramp “A” is a one-way, limited -

eee Counter-Statement of the Case

access ramp, via which traffic was previously able to _

enter the eastbound lane of the Parkway. Ramp aaa

would be utilized by- traffic originating in an area

north of the westbound lane of the Parkway or, in

the alternative, by traffic moving westward on the

Parkway and which turned off of the westbound lane

for the purpose, in effect, of turning around and driv-

ing eastwardly.

a

No portion of the sronety: of Red ueeny abuts

Ramp a ey .

_ Bell Road in the course of its northward projec-

. tion intersected Ramp “A’’. By virtue of the con-

demnation of June 2, 1950, it was legally permissible

_ to turn right off of Ramp ‘‘A” into Bell Road. Traf-

fic was not permitted to turn right from Bell Road

onto Ramp ‘‘A’’. Thus, Ramp “A” was not limited

-access at the point at which a right turn off of Ramp

‘‘A” was permitted. All other portions of Ramp-“A”

were limited access. Contrary to the assertion in their

' Petition, neither Petitioner Babcock nor Red Jacket

ever had the legal right to drive from their respective

tracts onto the parkway. In order to reach Peti-

tioners’ properties. from the Parkway, it was neces-

sary to turn right off of Ramp “4”? onto Bell Koad,

and then traverse Bell Road to a point of entrance to

- Petitioners’ tract. Petitioners could drive from their

property onto Bell Road. It was never legally pos-

sible to drive from Bell Road onto Ramp “A”, and

then onto the Parkway.

On October 9, 1957, in accordance with a plan duly

signed- by the Governor of the Commonwealth of

Pennsylvania, the Commonwealth acting through the

Counter-Btatement of the Case 5

Blears Department of Highways, erécted a barricade at the

point of intersection of Bell Road and Ramp “A”.

The effect of this barricade was to convert Bell Road

into a cul-de-sac. After the creation of the cul-de-sac,

it was no longer possible to make a right turn. off of

__Ramp “A” onto Bell Road. Petitioners’ rights of

access to Bell Road and Petitioners’ rights as _—

- on Bell Road have never been disturbed.

No portion of ‘any land of either Petitioner was

condemned by the Commonwealth of Pennsylvania.

Petitioners’ basic contention, precisely stated, is

that converting the road on which they abut, into a’

cul-de-sac constitutes a taking of property from them, |

for which taking they afe entitled to compensation.

- The basic contention of the Commonwealth, con-

cisely stated, is that the creation of a cul-de-sac is an

act done within the police power of the state and does

not constitute taking of a property right so as to en-

. title abutters: to nn

ee eae

_ eee - Reasons for Denying Writs wud:

‘ Dismissing A ppeals —

‘HWASONS FOR DENYING WRITS AND.

: DISMISSING ee AS

The Petitions for Writ of Certiorari Should Be Denied }

and. Appeals Dismissed Because No Substantial Fed-

eral Question Exists and Prior Decisions of This

Court, on Related Questions, Indicate That This Court

Will Leave to State Courts the Determination of Such

_. Issues as Have Been Raised by Petitioners

\Reapanidact seaveeitus states that the petitioners

have not raised any question which has not, in effect,

been previously decided by. this Court. This Court

should decline to review the judgments of state courts

when those judgments and decisions are predicated |

upon reasonable and adequate bases and interpreta-

tions of state law. Fay v. Nowa, 372 U.S. 391, 9-L. Ed.

2d 837 (1963): |

This case when stripped of all embellishments

amounts to no more than a cul-de-sac case. Petition-

ers’ properties abut Bell Road. Prior to the erection

of the barricade of which petitioners complain, access

could be had on to Bell Road from the Parkway. Bell

‘Road was converted into a cul-de-sac at its point of

intersection with the Parkway. Thus, the petitioners

. are asking this Court to determine the rights of

abutting property owners, under Pennsylvania law,

_in the streets on which they abut. Determinations of

| Meyer v. Ric

: Rassesa for Denying Writs wit ie 7

Dismissing A ppeals

such: cides have traditionally been left to state:

courts. Sauer v. City of New York, 206 U. S. 536, 51

L. Ed. 1176 (1906) ; Marchant ‘v. Pennsylvania Rail-

road coreey 153 U. S. 380, 38 L. Ed. 751 (1894);

mond, 172 U.S. 82, 43 L. -Ed. 374 (1898).

Marchant, supra, is on its facts virtually -determina=

tive of this case, In Marchant a portion of the street

- — on which the plaintiff ’s property abutted was con-

demned by the railroad company for construetion of -

vated roadway_were imbedded i in the foundation of the

street, however, they were not in front of the plain-

it ’s property. No portion of the plaintiff’s land was"

taken or occupied in any way by the railroad. An ac-

tion was instituted to recover for damages caused by

. smoke, dust, and noise created by the operation of

the railroad. At tlie trial, the Court of Common Pleas

instructed the jury that the damages were compen--

sable. The Supreme Court of Pennsylvania reversing,

ruled that the damages were noncompensable. This

_ Court indicated that it would not interfere with the —

state court’s determination of sericea of state law.

. It was said at page 385:

. “We are not authorized to inquire into the

grounds and reasons, upon which the Supreme.

Court of Pennsylvania proceeded in its-construc-

tion of the statutes and constitution of that State, —

and if this record presented no. other question _

‘except errors alleged to have been committed by

that Court. in, its construction of domestic laws,”

-we should be obliged-to hold, as has been often

held in like cases (emphasis adad) that we eslce

8 _. Reasons for bution Writs ‘and

- Dismissing Appeals

no jurisdiction to review the judgment of the

State Court, and we should have to dismiss this a

writ of error for that reason.”

Tn Sauer, supra, the city. of New York had built a

viaduct on 158th Street which had the effect of: dis-

'. turbing plaintiff’s access, light, and air. The plain-

tiff alleged‘ that the statute which authorized con-

struction of the viaduct was invalid for failure to

provide compensation for the rights of which plain-

tiff claimed to have been deprived. The statute had

- -been upheld by the New York Court of Appeals. This

_- Court affirmed that decision. The. plaintiff alleged,

inter alia, that the decision of the New York Court of

Appeals denied him rights secured by the Federal

Constitution. This Court said at page 548:

‘The same law which declares the easements -

- defines, qualifies and limits them. Surely such

questions must be for the final determination of

the State Court (Emphasis added.) It has au-

thority to declare that the abutting landowner

-has no easement of any kind over the abutting ©

street; or it may determine that he has an ab-

solute or unqualified easement. The right of an

owner of: land abutting on.public highways has -

been a fruitful source of litigation in the courts

of all the states, and the decisions have been con-

flicting, and often in the same state irreconcilable

in principle. The Courts have modified or over:

ruled their own decisions, and each state has in

the end fixed and limited, by legislation or judi-

" cial decision, the rights of abutting owners in ac-.

‘cordance with its'own view of the law and public

t

' Reasons for Denying Writs and. 9

Dismissing Appeals

* policy. As has already been pointed out, this

court has neither the right nor the duty to recon-

cile these conflicting decisions, nor to reduce the

law of the various states to.a uniform rule which

it shall announce and impose.” (Emphasis added.) —

- It seems clear, and rightly so, that this Court will

not take upon itself the burden of determining routine

questions of property law in the several states. This

presumes that no constitutional issues of monumental

magnitude are presented. However, as indicated by

_ Rule 19 (a), Rules of.this Court, review on writ of

' certiorari should not be granted if the federal ques-

. tion presented is neither one of substance nor one de-

- eided contrary to applicable. decisions of this Court.

It is respectfully submitted: that the question raised :

_ by petitioners is not only not a federal question of any

_ Substance, but was decided below squarely in line with

the holdings in Marchant and Sauer.

In Meyer v. Richmond, 172 U. S. 82, 43 hi Ed. ‘374

(1898), the City of Richmond -had authorized the

Richmond and Allegheny Railway Company to. con-

struct a portion of its works in such a way as to ob-

_ Struct the street on which plaintiff’s property abutted.

The Supreme Court of Appeals of Virginia had de-

~ nied the plaintiff. recovery of any damages. This

Court affirmed. At page 95 it was’ said:

-If under the constitution and laws of Virginia

whatever detriment he suffered was damnum

absque injuria he cannot be said to have been de-

prived of any property. — 3

Marchant v. Pa. R.R.,.153 U. 8. 380.

YP

10° . Reasons for Denying Writs and ©

° __ Dismissing Appeals

The Court in Meyer went on to say, also at page 95:

The substantial thing is not that one may be

damaged by an obstruction in a street—not that:

one may be specially damaged beyond others, but

is such damage or deprivation of property within

the meaning of the constitutional provision? :..

- Decisions i in other states we need not-resort to or’

- review. Those of this court furnish a sufficient

guide. (Emphasis added. ) |

& pe ess to the latter quote, the Court proceeded

\.to discuss the cases of * Transportation Company .

* Chicago, 99 U. 8. 635 (1878), Chicago v, Taylor, 125

1% 7 U. “$. 161 (1888), and Gibson v. United States, 166

‘U. S269 (1897) The injuries for which: damages

were soyght in these cases were the result of conse-

-quential* damages incurred during construction, but

which ceased subsequent to construction. This Court ~ ‘

_ made elear in ‘each of these cases that the compensabil- |

city of Such damages Was to be determined by the state

courts and the disallowarice of damages by the State

tribunals did not constitute anyaffront to basic rights

protected by the federal constitution. _ However, Re-

spondent recognizes a difference in quality and de-

gree between damages suffered’ during construction

and the damage resulting from a permanent change i in

. the street: system which surrounds a property owner’s

land. These cases are cited by Respondent to empha-

size the principle of non-interference in matters of ‘

state domestic law by this Court.,

There i is much language in ous instant Petitions to

the effect that the Petitioners have been deprived of

rv)

ry 5. _

_ Reasons for Denying Writs and ic 11

. Dismigging Appeals

a property right without due process of law; thus con-

trary to the express provisions of the fifth and four- |

teenth amendments to the United States Constitution.

‘It has already been shown that the domestic law of

the State governs. questions such as are raised here

- and the law. of Pennsylvania relative to. cul-dé-sacs

. will be discussed in the next succeeding section of

_ this brief. However, a comment on the allegation

that Petitioners have been deprived of due process of

law seems in order at this point.

The critical factor in determining if due process

has been accorded complainant is whether a fair trial

or hearing, governed by procedures fair, reasonable .

and.adequate under all of, the circumstances are avail-

able to the complainant. In this case there is no

‘doubt but that such hearing and procedures were not.

only available but utilized by petitioners. The only

' matter about which petitioners can truly complain’ is

that the law of Pennsylvania i is ‘unsatisfactory to them

as applied to them: The Petitioners have been before

a Board of Viewers, have taken exceptions in the

Court of Quarter Sessions to the Award of: said

Board, have filed an appeal from the Award of the

Board to the Court of Common Pleas, demanding a

jury trial for which the law provides,’ have argued

‘the exceptions to the Award of the Board of Viewers .

in the Quarter Sessions Court, and have appealed the °

dismissal of the exceptions to the Supreme Court of

The proceedings in the. Court of Common Pleas -have

_ been stayed pending outcome of these Petitions for Writ of

Certiorari. Of course, no trials will be had if this Court

affirms the Order of the Supreme ‘Court of Pa.

12 Reasons for Denying Writs and

' _Dismissing Appeals

Pennsylvania. . All of these tribunals have ruled that

the damages sought by petitioners are non-compen-

sable. There is nothing unique about the damages al-

legedly ‘suffered by petitioners. The statute and de-

cisions of which Petitioners complain probably affect

all members of the public at one time or another. The

comment of this Court in Marchant at page 386 ap-

pears applicable to this situation. The Court said as

follows:

The plaintiff below had the benefit of a full and

fair trial in the several courts of her own State,

whose jurisdiction -was invoked by herself. In

those courts her rights were measured, not by

laws made to affect her individually, but by gen-

eral provisions of law applicable to all those in

like conditions.

On this question the Court also said the following at

pages 385-386: .

It is sufficient for us in the present case ‘to say

that, even if the plaintiff could be regarded as

having been deprived of her property, tue pro-

ceedings that so resulted: were in “due process of

law’’. ‘

a

In summary, it is respectfully submitted that no

substantial federal question has been raised by, peti-

tioners and that the questions raised have been de-

cided in accordance with applicable decisions of Your

Honorable Court, and the Petitions for Writ of Cer-

tiorarj should therefore be denied and the appeals dis-

missed.

y

. Reasons for Denying Writs and — 13

Dismissing Appeals . :

In Pennsylvania, the Creation of a Cul-De-Sac Does

Not Constitute the Taking of a Property Right From

Abutters so as To Entitle Abutters to Compensation

Initially, it must be noted that a cul-de-sac can be

_ ereated by two means: (1) The erection of a barricade

as in the case at bar, and (2) the vacation of &@ por-

tion. of the street. In discussing this aspect of the

law, courts and text writers have a tendency to use

the terms cul-de-sac and vacation interchangeably.

Because the resulting factual situations are generally

_ the’same, respondent will refer, without distinction,

' to language utilizing both terms.

Tt has been ‘settled law in Pennsylvania since the

‘early case of Paul v. Carver, 24 Pa.-207 (1855), that

vacation of a portion of a public road is not an injury

_ for which abutting property owners are entitled to

compensation. In Paul v. Carver, the owner of land

had directed, in his will devising it, that a street be

laid out through it either by his heirs or the appropri-

ate public officials. The street was laid out by public

officials, but. was vacated subsequently by an act of

the legislature. The owners of adjoining lots claimed’

a right to occupy and build upon the vacated area

-and the plaintiff asserted that this constituted an

injury to him because his property could no longer

be conveniently reached. Plaintiff was an abutting

owner on the street. The strong and clear language

-.of the Court is virtually determinative of the issues

in the case at bar. The Court said at page 211:

To open new highways, whether streets or

country roads, and to vacate those which are

14

Reasons for Denying Writs and

: Dismissing Appeals

useless, insagcinlint, and burdensome, is a power

which must reside somewhere in every well regu-

lated government. In our own we have many

- laws conferring this authority on courts, on

county and township officers, on city and borough

‘councils, and on special commissioners. In very

many cases, also, the General Assembly has, by

its own direct and immediate act, ordered that

streets and roads should be vacated, as well as

‘ opened, widened, and otherwise -altered.. Do alk

_ these laws violate the constitution? We cannot

find anything in that instrument with which they:

are in conflict. Surrendering the right of way

over a public road to the owners of the soil, is

not taking private property for public use, and

the proprietors of other land incidentally injured

by the discontinuance of the road a’ e not entitled

. to compensation . . . But a public road belongs

_ to nobody but the state; and when the government

sees proper to vacate it, the consequential loss,

if there be any, must be borne by those who’suffer

it, just as they would bear what might result

from.a refusal to make it in the first place. ,

It is difficult to conceive of any restriction . or

_ change in a general system of roads and streets, or

_ changes in the regulation of traffic which do not

impose, to at least a small extent, upon certain

members of the public, some burden or inconvenience

which they were‘not previously required to sustain.

Since early in the common law, courts have recognized

the necessity of the vast majority of these “injuries”

being ruled noncompensable. Such regulations and

©

Reasons for Denying Writs and :-

Dismissing Appeals teas

changes might include the erection of stop signs,

traffic signals, no-turn signs, or, perhaps, conversion

of a three-lane highway t6 a two-lane highway. It is

clearly within the police power of the state to enact

such changes and regulations. So it is within the

police power to determine that it is for the public

safety and benefit that a road be terminated at a

' . given point. A property owner does not have a vested

right, of which he cannot be deprived, without com-

pensation, to be able to reach a given street or high-

way within the general system of streets and high-

‘ways, by a particular route. This, in effect, is the

right of which petitioners claim to have been deprived. Ps

Nowhere in the petitions for writ of certiorari, do

petitioners allege that they have lost access to Bell

Road. -The allegation actually is that it is no™longer

. possible to reach the parkway via Bell Road. Re- .

spondent readily concedes that it is often convenient

and financially remunerative to be able to reach a

high-speed limited- access highway via a short trip

from one’s property. But, it is emphasized that no

property owner possesses a vested right to such a

convenience, — aa ,

In McGee’s Appeal, 114 Pa. 470 (1886), the plain-

| tiff was the owner of a lot on a street which was a

thru street as ‘the result of a bridge which formed a

part of the street. The Pennsylvania Railroad Com-

pany under contract with the City of Pittsburgh

proposed to remove this bridge. In accordance with

an act of the legislature, the railroad company had

contracted with the city that the city would vacate

certain public right-of-way if the railroad would first

16 Reasons for Denying Writs and

_ Dismissing Appeals

acquire the properties abutting the right-of-way to

be vacated. The plaintiff’s property was not one

which the railroad was: to acquire. The plaintiff

filed a bill seeking an injunction to restrain the City

of Pittsburgh and the railroad company from re-

moving the bridge which formed part of the street

upon which plaintiff’s property abutted. The lower

’ court had sustained a demurrer to the bill in equity.

The Supreme Court affirmed the decree and said at

page 476:

“In the absence of any constitutional restriction

the power of the legislature to vacate streets and

highways, or to invest municipal corporations

with this power, cannot be doubted: Dillon on

Mun. Corp. ., 666. In Pennsylvania, a highway is

the property of the people, not of a particular

district, but of the whole state; who, constituting

as they do the legitimate sovereign, may dispose

of it by their representatives and at their pleas-

ure: Phila. Trent. R.R. Co.’s, 6 Wh. 25. Prior

_ to the adoption of the present constitution, there

was certainly no restriction of the powers of the

legislature, in this respect; the legislature had a

clear right to vacate any public highway, with or ‘

without the consent of the person whose private

interests are or may be affected by it.”

It cannot be too strongly emphasized that petition-

ers are in virtually the same factual situations as

were the plaintiffs in Paul v. Carver and McGee’s-

Appeal, supra, petitioners and the latter plaintiffs

retained the right of ingress and egress to and from

Q

Oy

" Reasons for Denying Writs and 17:

Dismissing Appeals

their properties. Upon leaving their properties, they )

could turn and move in either direction.

Petitioners make much of M cCrady sovgrt 399 Pa.

586, 160A. 2d 715 (1960).

The Commonwealth had in addition to taking a

portion of the plaintiff’s land, erected within the

_ right-of-way previously acquired by the Common-

wealth, a curb which had the effect of so restricting

ingress and egress to and from the subject property _

as to render it virtually useless for the purpose for

which it was being utilized. The property was being

utilized as a gasoline service station, restaurant and °

parking area. The Commonwealth contended that the

installation of the curbing was an act done within the

police power of the state and was therefore not a

'. factor to be considered in evaluating the damages

. sustained by the landowner. The Supreme Court

rejected the Commonwealth’s contention and held that

the instalation of the curbing was part and parcel

of the taking. Thus, the installation of curbing was

~ an act done under the power of eminent domain and

therefore compensable. The facts in McCrady are

easily differentiated from those in the cases at bar.

The McCrady property was, for practical purposes,

deprived of any access. Petitioners, it must be re-

_peated agam, have the same access, ingress and egress

which they have always had.

However, certain statements of the Court in

McCrady are applicable here. The Court said at page

591:

“Tn the dsilbiiduasbiags of this issue ‘Geeta well ©

established principles of law must’: be kept in

>

18

Reasons for Denying Writs and

Dismissing Appeals —

mind. First, as stated by Mr. Justice ‘sais Chief

Justice) Jones in Koontz. vs. Commonwealth, 364

Pa. 145, 147, 70 A. 2d 308: ‘It is, of course, not

open to dispute that, before the Commonwealth

can be made to answer, in the present state of

the statute law (Sec. 304 of the State Highway °

Law of June 1, 1945, P. L. 1242), for damages in

‘eases of highway. improvement, there must have

been a taking of the complaining sarin d owner’s

land.’?:

It was further said at page 592:

“Second, in the absence of any statutory pro-

vision providing therefor, the Commonwealth is .

not. liable for consequential damages® incurred in ~

the construction of highway [citing cases].

| Third, unlike municipal and other corporations

having the power of eminent domain, the Com-

_ monwealth is not within the provisions of Article

XVI, Section 8, of the Pennsylvania Constitu-

tion.”’ ae

Contrary to the implication on pages .19-21 of

Petitioners’ Petition, the Commonwealth is not in any

way attempting to accomplish indirectly under the |

guise of police power that which it cannot do directly.

The Commonwealth has not, in any way, shape or

3 <* ‘Consequential aiiaianta? as defined by Mr. ‘Justice

(later Chief Justice) Kephart in Soldiers: and Sailors

Memorial Bridge, 308 Pa. 487, 490, 162 A. 309, are those ©

which ‘arise when property is not actually taken or en-

tered but an injury to it occurs as the natural result of an.

act lawfully done by another’.’’ °

~

Reasons for Denying Writs and wee

| in id Appeals - :

form, exercised the power of eminent domain so as

to take petitioners’ property. In the same vein, the

strong language quoted by petitioners on page 21 of

their petition, from Key Realty Company Zoning Case, —

408 Pa. 98, 182 A. 2d 187 (1961), has absolutely no

application to the instant cases. The Key Realty

‘ease was a zoning case in which a building permit to

erect an apartment building on a given parcel was

refused. The language quoted is from' ‘the concurring

opinion of Chief Justice Bell, and has no legal con-.

nection or application whatsoever to the present cases,

The doctrine of Paul vs. Carver and McGee’s Appeal

was affirmed in Pennsylvania by In re Melon Street,

182 Pa. 397, 38 A. 482 (1897). The street on whieh

the plaintiff’s property abutted was converted-into a

eul-de-sae:' The plaintiff’s property did not abut the F

- vacated area. The condemnation was by the City of

Philadelphia and a right to recover damages caused

by the vacation of a street in Philadelphia was con-

ferred by statute. However, the Court said at ‘pages

401-402:

“Before the adoption of the new Constitution

the ‘Commonwealth was under no obligation to

make compensation for damages caused by the

vacation of streets: Paul vs. Carver, 24 Pa. 207.

And for the purpose of this argument it may be

conceded that since its adoption no such duty is

imposed by the provision that compensation shall

be made for property taken, injured or destroyed,

and that the right to recover damages for injury —

so resulting exists only by virtue of special legis-

lative provision: McGee’s Appeal, 114 Pa. 470.”

: oo Reasons for om Writs and

t

Dismissing Appeals

The case of Moyer et uz. vs. Commonwealth, 183

. Pa. Superior 322, 132 A. 2d 902 (1957), is especially 3

declining approach from an intersecti

pertinent to the immediate issue. In Moyer the high-

way on. which plaintiff’s property abutted was re-.

located. “It [highway] was moved away from appel-

lant’s lot some 30 feet, and a fill varying from nine

to fifteen feet was made. No land was taken. Access

to appellant’s property was accomplished by filling

in a portion of the old highway and making a steeply

street which

approach ends in a cul-de-sac.’’ Moyer,\page 335. The

Board of Viewers awarded the plaintiffs no damages

because no, land was taken from them.’ appéal to

'. the Court of Common Pleas was filed and this appeal

was dismissed on motion of the Commonwealth. The —

Superior Court affirmed dismissal of the appeal. The

plaintiff argued that even though no land was taken.

from them, they lost a property right as a result of

the deprivation of their ingress and egress and the

_ ~ placing of a fill in front of their property. The Court

said at page 336:

Eminent Domain is an inherent attribute of

sovereignty. However, the Constitution of the

Commonwealth contains two provisions restrict-_

ing the use of that power, namely, Article I,

Section 10, and Article XVI, Section 8. It is.

important to note that Article XVI, Section 8,

applies to municipal corporations, but not to the

Commonwealth, whereas Article I, Section’ 10, is

a limitation upon both.. Article I, Section 10,

requires compensation only for property ‘“‘taken

_or applied to public use’’, whereas Article XVI, -

. Reasons for Denying Writs sad . 21

Dreneaenny Appeals — ‘

‘Section 8, requires compensation “for property

taken, injured or destroyed”.

Thus, consequential damages do not constitute a

condemnation of a property right under Article I,

‘Section 10, of the Pennsylvania Constitution and

Pennsylvania law clearly imposes no duty upon the.

Commonwealth to pay compensation for consequential —

damages. It could well be argued that the creation

of a cul-de-sac is, in most instances, less burdensome ~

than many other types of consequential damage. In —

the present cases the cul-de-sac was created by the

erection of a barricade. Thus no property of any _

property owner was taken by: the Commonwealth. —

The Petitioners have not been burdened with any

- increase in noise, dust, or smoke. No’physical change

of any sort has been made in the roadway upon which

plaintiffs abut; i. e; for example, there has been

no change of grade.

As can be seen, the Pennsylvania cases holding that

the creation of a cul-de-sac or vacation of a road is

not the ‘taking of a property. right for which’ com-

pensation must be paid, are legion, and it is respect-

fully submitted that for this additional. reason the

Petitions for Writ of Certiorari should be denied _

the appeals dismissed. :

oie

22 me | "Reasons for Denying Writs and

| Dismissing Appeals —

No Contract Existed Between the Commonwealth and.

- Petitioners Whereby Petitioners Were Invested With

: the Right To Have Bell Road Remain Open at Either

of Its Two Terminal bess |

é a

On page 14 of the Petition, Petitioners refer to a

‘statement made .by the Court of Quarter Sessions’

(R.'127a) in the course of its opinion. The complete ‘

| paragraph i is as follows:

“Coimmon sense would indicate that there was

no intent that the plan should confer on George

* Peat a contract right to require the Common-

wealth to take so much of his neighbor’s land and

_no more, that within its right-of-way the Com-

- monwealth may do nothing-in the way of addi-

tions and improvements without his consent, and

- that, in effect, the Commonwealth be required to

surrender its police power over that portion of

; the Parkway, to his discretion.”

On page 15 of their Petition, Petitioners refer to

‘ the case of Cincinnati v. Louisville R. R. Co., 223 U. 8.

390, wherein this Court recognizes that ‘Aviielo A,

Section’ 10, Clause 1,! of: the Federal Constitution

is not a limitation upon the power of eminent domain.

That case holds, in effect, that a contract may be

- appropriated to a public use so lorig as compensation

is made therefor. °

1 Article I, Section 10, Cleans’ 1, United States Conatitu-

_ tion, states, inter alia, .as follows: ‘‘No state shall . . . pass °

~. any Bill of: Attainder, ex post facte Law, or Law eenicind

- ”* the Obligation of Contracts, or grant any Title of Nobility.’’

Reasons for Denying Writs ond 23

Dismissing Appeals

The Respondent | has no quarrel with the mmeiedithde

that a contract may be appropriated and compensation

‘made therefor under the power of eminent domain,

'. but, even assuming, arguéndo, that a contract could

exist under these circumstances, petitioners fail to

_ Tecognize that a contract, as any other species of

property, is subject to the exercise of police power

by the state, with its. attendant inconveniences and

-noncompensable burdens. . However, it is unnecessary

to reach into the academic stratosphere in ‘order to

dispose of petitioners’ contention. It has been held

in Pennsylvania that the Commonwealth cannot divest

itself of its police power. The Pittsburgh & Connells-

ville R. R: Co. v. Southwest Pennsylvania Railway

_ Co., 77 Pa..173 (1874). In the latter case, the factual

‘situation was that the appellee railroad contended

that it had the right to construct and operate its

railroad across the roadway and tracks of’ the ap-

pellant railroad. Appellant contended that the act

of the legislature creating it prevented the legislature

from permitting any other railroad to utilize the

locations chosen by appellant. ° "The Court said at -

page 186:

Besides, we cannot presume the legislature

ever intended to divest itself of the exercise of the

police power of the state. The right to regulate

railroad crossings naturally flows from that .

- reserve power.

~ Your Honorable Court’s attention is also respect-

_ fully referred to the case of Titusville Amusement Co.

v. Titusville Iron Works Co., 286 Pa. 561, 134°A. 481

( er The city of Titusville passed an ordinance

24. . Reasons for Denying Writs and

, _ Dismissing Appeals

which “for the public good and benefit of the said

city” vacated and closed as a public street a portion

of a street in the city. Defendant, which owned

"property on both sides of the vacated area, desired

_ to take possession thereof and erect a building upon

it. Plaintiff, an abutter on the street, filed a bill in

equity seeking to enjoin defendant from utilizing the

vacated portion. The Court said at page 566: -

The city could not irrevocably bargain away the

right and duty to vacate, when occasion required

“it, even for a valuable consideration, any more

than it could, under like circumstances, barter

away its power to open streets: Penna. Hospital .

v. Phila., 254 Pa. 392; affirmed on appeal in 245

U. S. 20.

Finally there is the case of Philadelphia Suburban

Water Co. v. Pennsylvania Public Utility Commission,

168 Pa. Superior Ct. 360,78 A. 2d 46 (1951). The

‘ Publie Utility Commission had ordered the Philadel-.

phia Suburban Water Company to remove its pipes

from a portion of state higNway, at its own expense,

because the highway was to be reconstructed by the

Department of Highways. The Court reiterated the

principle that the State cannot divest itself. of its.

police power and cited in support thereof Pittsburgh

& Connellsville. R. R. Co., supra.

It seems almost fundamental that the sovereign

cannot contract away its police power. A contract

not to exercise police power would be a divestiture

of one of the basic powers and reasons for the exist-

ence of government. The absence in government of

eadains for Denying Writs and 25

Dismissing Appeals i,

the power:to regulate for the health, safety, sisi,

and general welfare of its citizens, who, after all is

said and done, constitute the state, amounts to a

virtual denial of the existence of civilized government.

‘There was clearly no contract between petitioners

and the Commonwealth or between George Peat and

the Commonwealth and the police power as exercised

by the Commonwealth was well within proscribed

limits as defiried by this Court and the appellate

- courts in Pennsylvania. ;

- Section 8 of the Pennsylvania Limited Access High-

. “way Act Which Deffies Payment for Consequential

Damages Neither Denies Petitioners Due Process nor

: _ Equal Protection of the Laws

The pertinent portions of the Act of 1945, May 29,

P. L, 1108, § 8, 36 P.S. 2391.8, reads as follows:

The owner or owners of private property

affected. by the construction or designation of a

limited access highway or local service highway .

or by the change of the width or lines-of any

intersecting streets or roads shall be entitled

only to damages arising from an actual taking of

- property. The Commonwealth shall not be liable

for consequential damages where no property is

taken: Provided, however, That the Secretary of

Highways shall have authority.to enter into agree-- 6

ments for the sharing of the cost of property |

_ damages with the officials of any political sub-

26 Reasons for Denying Writs and

Dismissing Appeals :

division of the Commonwealth, which assumes

such responsibility by proper ‘résolution or > ordi-

nance.

The Petitioner notes that the above-cited act uses

the word ‘‘property’’ as distinguished from the use

of the word “land’’. Respondent agrees that the

word ‘‘property” is a more general term and would

include certain incorporeal rights and easements not

“necessarily encompassed within the meaning of the

word “land”. However, distinctions of this sort, while -

often meritorious and of great legal. importance, have

no merit in the instant case. As was seen in the first ‘

‘,part of respondent’s argument, the Pennsylvania

courts have held from early times that the right of

which Petitioners claim to have been deprived, is not

such a right, the taking of which is compensable.

Thus, Petitioners are legally availed’ of, little or

nothing by the distinction made.

Petitioners also refer to the cases of Griggs v.

County of Allegheny, 369 U. S. 84, 7 L: Ed. 2d 585

(1962), and Gardner v. Allegheny County, 382 Pa. 88,

114 A. 2d 491 (1955). Both cases held, in effect,

that the utilization of air space above a property, by -,

airplanes flying so low, as in taking off or landing, ~

as to substantially interfere with the landowner’s use »

and énjoyment of his property constitutes a compens-

able taking of a property right. Respondent has no

quarrel with the holdings of these two cases. However,

it is respectfully submitted that they have no applica-

_ tion here. - There is no doubt but that there are

property rights, the taking of which is compensable,

and that such rights may be other than ownership of

Reasons for Denying Writs and ‘27

‘Dismissing Appeals , ;

the land itself.” Still, there is no escaping the con-

clusion that petitioners rights do not fall within the

latter category. As noted earlier, the damages

- suffered by petitioners are noncompensable, and thus —

distinguishable from the air space cases.

Petitioners further cite Pennsylvania Coal Company ©

2. Mahon, 260 U. S. 393, 67 L. Ed. 322 (1922), as a

landmark case in the development: of the protection

of private property against overzealous use of the

police power. The Mahon case involved the validity

of a Pennsylvania statute which forbade the mining ~

of anthracite coal in a way as to.cause a subsidence

of, among other things, structures used for human ~*

‘habitation. The defendant [below] coal company, .

had years previously executed a deed conveying the

surface on which the plaintiffs’ [below] house was

constructed. The deed expressly reserved the right

to remove all the coal under the surface and the

grantee expressly waived any right to damages arising .

from such mining. The plaintiff filed a bill in equity .

to enjoin the defendant from mining the edal. Plain-

tiff admitted the provisions of the deed, but contended

that the statute, which was an exercise of the police’

power, took away the coal company’s rights under the

..-deed. The Court of Common Pleas-held that the

statute as applied to the case was unconstitutional,

_ but the Supreme Court of Pennsylvania reversed.

‘This Court reversed the Supreme Court of Pennsyl-

vania. “It was held that there are situations in which

the exércise of the police power goes too far; so far

as to amount to a taking and therefore the act becomes

one under the power of. eminent domain, for which

28 ~~. Reasons for Denying Writs and

| _ Dismissing Appeals

_ compensation must be made. The Mahon case is

clearly distinguishable from the case at bar. The coal:

company was deprived of a tangible, corporeal right.

Ownership of coal is meaningless without the right .

to mine it. The petitioners in the case at bar have

not lost any tangible, corporeal right. They have lost

a convenience and'no more. Thus, Petitioners state-

ment on page 23 of its petition, to the effect that

Sauer v. New York, supra, has been strictly limited

by Mahon is without merit. Sauer and the other

similar cases cited in the first two topics of this brief

denied property owners compensation for conse-

quential damages.. There was no. question of con-:

sequential damages in Mahon. , Rather, the coal com- .

pany therein was directly and harshly forbidden to

mine its coal, and as. this court noted, ‘“‘for practical

purposes, the Tight to coal consists in: the right to

mine it”. .. 7 °

As a further attack upoithe Limited aie High-

ways Act, supra, Petitioners allege. that it. deprives.

them of the equal protection of the laws. It is re-.

spectfully submitted that this court should, if for no

other reason, refuse to consider this allegation,

-because this most serious and fundamental issue was

-not timely raised, This allegation was made for the

first time in petitioners’ brief before the Supreme

Court of Pennsylvania. Petitioners are actually before

this Court upon petition to review dismissal of Peti-

tioners’ exceptions to an award of:a board of viewers

(R. 99a and-103a), which dismissal was affirmed by

the Supreme Court of Pennsylvania.. The exceptions

alleged three reasons which are as follows:

eo

Reasons for Denying Writs and 29

Dismissing Appeals :

1. The sonia: is contrary to the facts adduced.

a The award is contrary to the applicable law.

‘3. The award i is inadequate. ;

Obviously the only reason which is even’ remotely

connected -with a denial of constitutional rights is

reason number two. However, this reason is so vague

that it could not be said to fairly include within it, |

an allegation that exeeptants had been denied the

equal protection of the law. As this court said in

Ellis v. Dixon, 349 U. S. 458, 99 L. Ed. 1231 (1955),

at page 462, ‘“‘What has been alleged is entirely too

amérphous to permit adjudication of the constitutional

_issue asserted.’’ The writ of certiorari in Ellis which

‘had initially been granted was then dismissed as im-

providently granted.

Continuing with their allegation that they have heen

deprived of the equal protection of the laws, petition-

ers allege that the statute in question provides a

_ procedure by which the Secretary of Highways may

purchase property for constructing limitéd access

~ highways, but makes no provision for the purchase of...

property upon conversion of an existing road to a

_limited access highway. Initially it must be noted .

‘that even if this reason contained: any merit, which

_ respondent denies, it would have no application to

‘petitioners claims and would therefore be moot and’

academic in these cases. This court does not sit to

decide moot or academic issues. Rice v. Sioua City ~

Memorial Park Cemetery, 349 U. S. 70, 99 L. Ed. 897

-. (1955). Otherwise, the fallacy in Petitioners’ conten-

tion is that the portions of the parkway upon which

30 ° . Reasons for Denying Writs and

Dismissing Appeals

their properties abut were always limited access. In

_ fact, the parkway had always been, from its inception,

limited access at the points on which it abuts Petition-

ers’ tracts. The Township road on which the barricade —

“was actually erected, never was and is not now a

. limited access road. Thus, contrary to Petitioners’

assertion, no existing road has been converted to a

limited access highway. However, respondent notes,

_as a point of information, that this Court in Martin

v. Creasy, 360 U. 8..219, 3'L. Ed. 2d 1186 (1959),

implied that a total. deprivation of access, resulting

from the conversion of an existing highway to a

limited access highway constituted the compensable

‘taking of a property right. With this implication, -.

' respondent agrees. - This court in.Creasy, did no more

than to reverse an order of the Federal District Court

for the Western District .of. Pennsylvania, enjoining

the appropriate officials of the Commonwealth of

‘Pennsylvania from erecting a limited access fence

in front of complainant’s property, thereby, depriving

him totally of access. Petitioners herein point out ~

that Mr. Justice Douglas dissented in part in Creasy,

and would have determined in that proceeding whether

access rights.constituted property in the constitutional. .

sense. It is respectfully submitted that the access -

rights referred to in that dissenting opinion were the

access rights of abutters, who had been totally de-

prived of all access. Thus in Creasy they would have

been deprived of private access while in this case. the

access blocked off is a public road. Petitioners are

-not in the same position factually or legally as-the

landowner in, Creasy. Petitioners’ access-to the streets

and roads on which they abut on all sides is no differ- ~

'' Reasons for Denying Writs and. 31

Dismissing Appeals AES, 7 ye re

ent today than it was on the days on which they

respectively purchased their tracts of land.

Petitioners also argue ‘that they are deprived of

the equal protection of the laws because the Limited .

Access Highways Act denies compensation. for con-

sequential damages when no property is taken, and ~~

the Act creating the Pennsylvania Turnpike Com-

mission, Act of 1937, P. L. 774, No. 211, 36 P.S. 652,

provides that the Purupilee Commission shall be liable -

for consequential damages absent a taking of prop-

erty. In Ewalt v. Pennsylvania Turnpike Commission,

382 Pa. 529, 115 A. 2d 729 (1955), the Pennsylvania

Supreme Court held, inter alia, that the. Pennsylvania

Turnpike Commission being an instrumentality of the

Commonwealth, was not liable for consequential dam-

ages. -It is noted.that the Turnpike Commission was

held liable for damages caused by a trespass and not

_ by the exercise of the power of eminent domain.

_ Therefore, the distinction which Petitioners make is

- nonexistent.

Finally, in support of their allegation of] denial of

equal protection, Petitioners attack that section of

the Limited Access Highways Act, supra, which per-

_mits the Secretary of Highways to enter into cost-:

sharing agreements for property damages, with

officials of political subdivisions, which assume stich

_ responsibility by resolution or ordinance. This allega-

tidh, as the first relative to equal protection raised

by Petitioners, is academic. For that reason alone

. _ it should be ignored. Rice v. Sioux City Memorial

Park Cemetery, supra. The Secretary of Highways did

not enter into any such agregment with any political

32 Reasons for Denying Writs and

: , : Dismissing Appeals

subdivision in this case and therefore the quesgjon of

the validity and constitutionality of such an agreement

is not before this court. Respondent does note, how-

ever, that its pdsition is that the damages payable

under a cost-sharing agreement would be only those

for which the Commonwealth ‘would otherwise be

liable. The import ef the aftacked provision was .

- clearly not to make the Commonwealth fable for

consequential damages. This conclusion must be -

reached in light of the specific language of this very

section, prohibiting payment of consoiuentia! damages

by the Commonwealth. oil

‘With reference tothe vague ‘and inconelusive

implication that the latter section .discussed paves _

the way for evil and malicious proliferation of

political discrimination and. influence, the record in

this proceeding is fortunately devoid of any such

charges. Such charges were never’ made prior to

their appearance in appellants’ brref for the Supreme

Court of Pennsylvania. They are completely without

factual or legal substance and should be ignored.

This Court has previously sanctioned the distinction |

between direct and consequential damages and such

-distinctions are: reasonable- and do. not constitute a.

denial of equal protection of the laws. This Court:

said in Marchant v. icra ueeatts Railroad conan,

— at page 389: eee, 2] ;

The: two. classes’ of complainants differed in

the critical particular that one class suffered.

direct and-immediate damage, from the construc-

‘tion of the railroad in such a way as to exclude

a ee

.

ere for Denying. Writs and _ lah

_ Dismissing Appeals ak

them from the use of their accustomed highway, ©

and the other classes suffered damages which

were consequential on the use by the defendant

- company of their franchise and their own prop-

erty. . The question thus raised is within the case

of Missouri -v. Lewis, 101 U: S. 22; where it was

+ said ‘that “the clause in question means that: no

_ sperson or class of persons shall be denied the

same protection of the laws which is enjoyed by

_other persons or classes in the same place and

“under like circumstances.

Petitioners have not been renee any differently |

nor does the statute in question treat them differently

than any other property owner on Bell Road, on

the Parkway, or for that matter anywhere. in the °

Commonwealth of Pennsylvania. The classification

‘is reasonable, predicated upon strong legal and prac-

tical bases, has been approved by this Court in prior |

decisions, and should again be affirmed here.

i ae le deinen naa Pe sie Srvibewiswhsone — g : 7 ~ : ‘ tif 5 a

‘ - “ ° .

» ™ ° . -

34 Reasons Sor Denying = and

ee ee “CONCLUSION ieee

: fag Be 3 ‘oe? *

/

i respectfally submits that Petitioners .

‘have not raised any substantive federal question or

- any question not previously ruled upon by Your 4

. Honorable Court in a manner contrary tp Petitioners’

- allegations. Respondent therefore respectfully urges —

that: Your Honorable Court deny the Petitions for :

| Writ of Certigrari and dismiss: the appeals.

Grorce R. SPECTER, 7

_ Asst. Attorney General,

Rosgrt W. Cun .irre,

Asst. Attorney General,

Water E. ALESSANDRONI, .

-Attorney General, - Nes

Attorneys for Respondent.