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SIMCO STORES v. PHILADELPHIA REDEVELOPMENT AUTHORITY (04/05/73)

decided: April 5, 1973.

SIMCO STORES, INC., ET AL.
v.
PHILADELPHIA REDEVELOPMENT AUTHORITY



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of A 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 B, Designated as NDP Area IV, Philadelphia, Including Certain Land, Improvements and Properties, No. 3965 May Term, 1970.

COUNSEL

Robert W. Maris and Barry E. Ungar, with them Theodore R. Mann, Mann and Ungar, and Dilworth, Paxson, Kalish, Levy & Coleman, for appellants.

Nathan L. Posner, with him Victor Wright and, of counsel, Fox, Rothchild, O'Brien & Frankel, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Dissenting Opinion by Judge Mencer.

Author: Per Curiam

[ 8 Pa. Commw. Page 376]

The appellants were owners and tenants of commercial properties located on the north side of the 900 block of Market Street in Philadelphia. Their properties were condemned by the Redevelopment Authority of the City of Philadelphia. The appellants filed preliminary objections to the Authority's declaration of taking. All of the objections were dismissed and these appeals followed.

Six days of hearings were held below. We have carefully reviewed the record and have concluded that Judge Harold Berger's opinion ably and correctly disposes of the questions presented for our review. We affirm the court's order on Judge Berger's opinion following:

"This matter, involving the condemned properties located in the Market East sub-area of the Center City Redevelopment Area in Philadelphia is before the court on preliminary objections filed pursuant to Section 406 of the Eminent Domain Code of 1964. In substance, the objections are that:

"1. The City of Philadelphia by having imposed excessive and unreasonable real estate taxes upon the condemned properties, deprived the property owners of the necessary cash flow with which to maintain them so that they depreciated in value, thereby adversely affecting their fair market value as of the time of condemnation.

"2. Condemnees were harassed by the Redevelopment Authority's repeated attempts to dispossess the condemnees and their tenants after condemnation, but before the disposition of preliminary objections.

"3. Gimbel Brothers, Inc. should not have been selected as the redeveloper to the exclusion of certain of the condemnees-objectors.

"4. The Eminent Domain Law offends Article I, Section 10, of the Pennsylvania Constitution in not

[ 8 Pa. Commw. Page 377]

    allowing for a determination of the sufficiency of the Redevelopment Authority's security until after title to property has passed to the condemnor.

"5. The Redevelopment Authority did not fully comply with Section 6(a) of the ordinance of City Council approved February 26, 1970, dealing with the acquisition of the properties involved.

"6. The Center City Redevelopment Area of Philadelphia is not blighted and the City Planning Commission acted arbitrarily in so certifying.

"We will consider each of objectors' claims separately.

"I.

"A challenge to the condemnation because the value of the properties might be diminished as of the date of taking because of the alleged arbitrary action of the City of Philadelphia in imposing excessive and unreasonable real estate taxes so that the owners were deprived of the cash necessary to maintain the value of the properties is not a challenge that may be raised by preliminary objections.

"Preliminary objections filed in accordance with the Eminent Domain Code of 1964, Special Sess., P.L. 84, 26 P.S. Section 1-101 et seq., may raise only those matters enumerated in Section 406. Department of Highways Appeal, 429 Pa. 254, 239 A.2d 343 [1964].

"Section 406 provides:

"'(a) Within thirty days after being served with notice of condemnation, the condemnee may file preliminary objections to the declaration of taking. The court upon cause shown may extend the time for filing preliminary objections. Preliminary objections shall be limited to and shall be the exclusive method of challenging (1) the power or right of the condemnor to appropriate the condemned property unless the same has been previously adjudicated; (2) the sufficiency of the security; (3) any other procedure followed by the

[ 8 Pa. Commw. Page 378]

    condemnor; or (4) the declaration of taking. Failure to raise these matters by preliminary objections ...


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