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GOLDEN DAWN SHOPS v. PHILADELPHIA REDEVELOPMENT AUTHORITY (10/08/71)

decided: October 8, 1971.

GOLDEN DAWN SHOPS, INC.
v.
PHILADELPHIA REDEVELOPMENT AUTHORITY



Appeal from the Order of the Court of Common Pleas of Philadelphia County, No. 3966 May Term, 1970, in case of In re: Condemnation Proceeding In Rem by Redevelopment Authority of the City of Philadelphia for the Purpose of Redevelopment of Center City Redevelopment Area, Market Street East Urban Renewal Area, Section A, Designated as NDP Area VI, Philadelphia, Including Certain Land, Improvements and Properties. Golden Dawn Shops, Inc., Condemnee.

COUNSEL

Edward L. Snitzer, with him Paul L. Jaffe, Mesirov, Gelman, Jaffe & Levin, for appellant.

Nathan L. Posner, with him James W. Greenlee and Fox, Rothschild, O'Brien & Frankel, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Rogers. Concurring and Dissenting Opinion by Judge Crumlish, Jr. Judge Manderino joins in this Opinion.

Author: Rogers

[ 3 Pa. Commw. Page 316]

The Redevelopment Authority of the City of Philadelphia (Authority) filed its declaration of taking of a number of properties in the City of Philadelphia, including premises 1232-40 Market Street which the appellant, Golden Dawn, Inc., occupies as a tenant. The Declaration was authorized by a resolution of the Authority, attached as an exhibit to the Declaration and not here challenged, which recited that Authority had been authorized by Ordinance of City Council to proceed with the redevelopment of an area known as the Market Street East Urban Renewal Area and that the power of eminent domain was conferred by Section 12 of the Urban Redevelopment Law, Act of May 24, 1945, P.L. 991, 35 P.S. 1701. The said Ordinance of City Council, also not here challenged, contains a metes and bounds description of the Market Street East Urban Renewal Area. This area is characterized in the Declaration as blighted and as subject to replanning and redevelopment for commercial, public and other new uses as provided in the proposal and plan approved by City Ordinance. The premises 1232-40 Market Street is within the Market Street East Urban Renewal Area. Also attached to the Declaration was Authority's bond without surety conditioned for the payment of damages to the owners of the properties condemned.

The appellant filed preliminary objections to the taking pursuant to Section 406 of the Eminent Domain Code, Act of 1964, June 22, P.L. 84, 26 P.S. 1-201, as follows:

[ 3 Pa. Commw. Page 317]

I. That an area called Parcel 2 described in the Declaration, containing 1.8469 acres and including 1232-40 Market Street, sought to be condemned, is not blighted and has never been designated by any governmental agency as blighted.

II. That the purpose of the condemnation was not, as expressed in the complaint, to replan a blighted area but that the purpose was to acquire commercial land for development by certain private business corporations.

III. That the bond of the Authority did not secure just compensation but is in fact inadequate, insufficient and valueless.

Almost four months after appellant's preliminary objections were filed, the Authority filed preliminary objections to appellant's preliminary objections requesting an order of dismissal. The court below dismissed appellant's preliminary objections apparently on the ground that they lacked specificity. It is from this order that the instant appeal is taken.

Appellant argues that the issues raised by their Section 406 preliminary objections were factual, that it should have been permitted to produce evidence in support thereof, that it was entitled to a judicial determination of its assertions of lack of power to condemn and insufficiency of the security and that assuming that its pleading lacking specificity, it should have been permitted to amend. The appellant advances the subsidiary argument that the Authority's preliminary objections should be dismissed because the Eminent Domain Code does not provide this pleading as a means of attacking Section 406 preliminary objections. Section 406 limits preliminary objections to challenges of the power or right of ...


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