Appeal from order of Court of Common Pleas No. 2 of Philadelphia County, March T., 1966, No. 3323, in re condemnation of Bruce Avenue from Marshall Street to Blue Grass Road.
Michael Edelman, with him Donald E. Funk, for appellant.
Matthew W. Bullock, Jr., Second Deputy City Solicitor, with him Edward G. Bauer, Jr., City Solicitor, for City of Philadelphia, appellee.
Irvin Stander, for intervenors.
Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Cohen. Mr. Chief Justice Bell took no part in the consideration or decision of this case.
This is an appeal from an order of the Court of Common Pleas No. 2 of Philadelphia County dismissing preliminary objections filed under § 406 of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P. L. 84, Art. IV, as amended, 26 P.S. § 1-406 (Supp. 1970), in response to a Declaration of Taking filed by the City of Philadelphia.
In 1901 Blue Grass Land Company, owner of a tract of land bounded by Welsh Road, Blue Grass Road, Marshall Street and Gregg Street located in the 35th Ward of the City of Philadelphia filed with the City a plan of streets for the said tract. Shown on this plan of streets was one designated as Bruce Avenue which was to run north and south between Marshall Street and Blue Grass Road. Bruce Avenue was never placed on the City Plan, no improvements had been installed, and the street was never physically open or travelable. In January, 1965 the City Council passed and the Mayor approved an ordinance changing the zoning classification of this tract to Area Shopping Center. The whole tract except for one lot owned by Morris Kramer, appellant, and one lot which is not involved in this litigation is legally or beneficially
owned by Harry Kravitz et al., intervenors, who desire to build a shopping center on the land. Appellant's tract is located in the middle of the larger tract and abuts the southwest side of Bruce Avenue (Bruce Avenue does not run exactly north and south).
In order to clear title conditions intervenors desired that an ordinance be enacted whereby the street could be placed on the City Plan and legally opened and that a second ordinance then be enacted striking and vacating the street. In 1965 the City Planning Commission and other city departments concerned with street matters made a finding that Bruce Avenue was not a required street for traffic circulation or for other municipal purposes. Thereafter an ordinance, No. 1054, was introduced in City Council authorizing and directing the placement of Bruce Avenue on the City Plan. This ordinance was enacted and approved by the Mayor on July 30, 1965. In March, 1966 Bill No. 1784 was introduced in City Council authorizing the striking and vacating of Bruce Avenue. A hearing was held on April 28, and the ordinance was thereafter enacted by Council and approved by the Mayor on May 20, 1966. Both ordinances required intervenors to file an indemnity agreement together with corporate surety to indemnify the City against any damages that might arise from the opening and striking of Bruce Avenue.
On April 19, 1966, after the introduction of the striking ordinance but prior to its passage, the City filed a Declaration of Taking in the court of common pleas. The Declaration stated that the City was taking an easement for street purposes over the land designated in ordinance 1054 (Bruce Avenue). Notice of the filing of the Declaration was served upon appellant on April 29, and the notice in part stated, "Your property has been condemned as a no taking in ...