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JOSEPH KINSTLER v. REDEVELOPMENT AUTHORITY CITY PHILADELPHIA (06/03/74)

decided: June 3, 1974.

JOSEPH KINSTLER, I/A/T/A INTEGRITY DENTAL LAB, APPELLANT,
v.
REDEVELOPMENT AUTHORITY OF THE CITY OF PHILADELPHIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of In the Matter of a Condemnation in fact and/or Dislocation by the Redevelopment Authority of the City of Philadelphia, Arising from Acts, Actions and Failure and Refusals to Act by the said Redevelopment Authority Concerning and with Regard to the Franklintown Area. Claim of Joseph Kinstler, individually and t/a Integrity Dental Lab, No. 375 November Term, 1972.

COUNSEL

Lewis Kates, with him Joseph R. Livesey and Kates, Livesey & Edelstein, for appellant.

Richard D. Malmed, with him James D. Crawford, for appellee.

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

Author: Kramer

[ 13 Pa. Commw. Page 282]

This is an appeal filed by Joseph Kinstler, i/a/t/a Integrity Dental Lab (Kinstler) from an order of the Court of Common Pleas of Philadelphia County dismissing and quashing Kinstler's petition for the appointment of a board of view, and also vacating an order dated November 14, 1972, appointing a board of view, all without prejudice to either party to pursue their remedies under the Eminent Domain Code (Code), Act of June 22, 1964, Sp. Sess., P.L. 84, § 101 et seq., as amended, 26 P.S. § 1-101 et seq.

This case had its genesis on November 8, 1972, when Kinstler filed a petition for the appointment of a board

[ 13 Pa. Commw. Page 283]

    of view pursuant to Section 502(e) of the Code, 26 P.S. § 1-502(e). In the petition, Kinstler alleged that the Redevelopment Authority of the City of Philadelphia (Redevelopment Authority) had caused him to become "a displaced person" because on or about May 1, 1972, the Redevelopment Authority: (1) had publicly announced the commencement of condemnation studies; (2) had selected a developer for the area in which Kinstler's landlord's property was situated; and (3) had advised Kinstler that the premises in which his business existed were subject to the condemnation. It is also important to note that although Kinstler's petition stated that he was an "occupant" of the premises, there is no allegation that he had suffered any damage to the date of the filing of the petition.

There is nothing in the record of this case to show that the Redevelopment Authority was ever served notice of the filing of Kinstler's petition. Six days after the petition was filed, on November 14, 1972, the court below appointed a board of view to determine just compensation. Once again, there is nothing in the record, except for an admission contained in the preliminary objections filed by the Redevelopment Authority on May 14, 1973, showing proof of service or publication of the order appointing the board of view. Those preliminary objections were based upon: (1) an allegation of the failure of Kinstler to serve the required notice on the Redevelopment Authority; (2) a demurrer based upon an allegation that Kinstler had not alleged a compensable injury in view of his admission that he was still a tenant in full occupancy of the premises; and (3) that Kinstler was not entitled to any relief for the reason that at the time of the filing of the Kinstler petition, there had not been a condemnation and, to the contrary, a declaration of taking was filed on April 26, 1973, by the Redevelopment Authority. Kinstler filed an answer to those preliminary objections, and the lower

[ 13 Pa. Commw. Page 284]

    court, without hearing, entered the order of June 18, 1973, from which this appeal was taken on July 11, 1973. Thereafter, the court filed a memorandum opinion dated October 2, 1973.

The real issue presented to us is whether a condemnor may file preliminary objections to a petition for the appointment of viewers filed by the condemnee alleging a de facto condemnation pursuant to Section 502(e) of the Code six months after the filing of said petition and the appointment of a board of view by the court where the record does not disclose any proof of service of notice upon the condemnor of either the filing of the petition or the appointment of a board of view. In addition, we are also confronted with the issue of whether the court below may ...


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