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LEO REALTY COMPANY v. REDEVELOPMENT AUTHORITY CITY WILKES-BARRE (06/04/74)

decided: June 4, 1974.

LEO REALTY COMPANY, APPELLANT,
v.
REDEVELOPMENT AUTHORITY OF THE CITY OF WILKES-BARRE, APPELLEE



Appeal from the Order of the Court of Common Pleas of Luzerne County in case of Leo Realty Company v. Redevelopment Authority of the City of Wilkes-Barre, No. 252 January Term, 1972.

COUNSEL

Jerry B. Chariton, with him Louis Shaffer, for appellant.

Donald D. McFadden, with him Flanagan, Doran, Biscontini & Shaffer, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Kramer. Judge Crumlish, Jr. concurs in the decision only. Dissenting Opinion by Judge Mencer.

Author: Kramer

[ 13 Pa. Commw. Page 289]

This is an appeal filed by Leo Realty Company (Leo) from an order of the Court of Common Pleas of Luzerne County, dated June 15, 1973, wherein the preliminary objections filed by Leo to the declaration of taking filed by the Redevelopment Authority of the City of Wilkes-Barre (Authority) were dismissed.

Prior to 1968, Leo owned and operated a warehouse on South State Street in Wilkes-Barre, apparently for the warehousing of the goods and merchandise of Landau's Furniture Store. The exact relationship between Leo and the furniture store is not explained in the record other than the president of Leo stated that the operation of the warehouse was essential to the carrying on of his business, which he identified as Landau's Furniture Store. It was stipulated for the record that in December 1968 Leo was dispossessed of its warehouse property on State Street, and that through the assistance of the Authority, Leo was relocated in May or June of 1969 to the premises on North Wells Street in

[ 13 Pa. Commw. Page 290]

Wilkes-Barre, which are the subject matter of this proceeding. On January 17, 1969, the Planning Commission of the City of Wilkes-Barre approved an area, including Leo's North Wells Street property, for rehabilitation as an urban renewal area. Public hearings were held in April of 1969 and May of 1971. On December 3, 1971, the Authority filed a declaration of taking describing Leo's North Wells Street property, which was served on Julius Landau, president of Leo, on December 10, 1971. The property was posted on December 8, 1971, and Leo was given notice to "quit, surrender, and deliver up" its property.

On December 30, 1971, Leo filed preliminary objections in which it: (1) questioned the sufficiency of the bond (this issue was withdrawn); (2) challenged whether its property was in a blighted area; (3) challenged whether the proposed taking was for the public use; and (4) alleged that the proposed taking was unjust and unwarranted because the property in question was owned by Leo as the result of a relocation caused by a prior condemnation.

Depositions on these preliminary objections and an answer filed thereto by the Authority were taken and presented to the court below for disposition of the preliminary objections. The court below, in dismissing Leo's preliminary objections, found that although Leo's building was structurally sound, it was located in an area which had been deemed to be blighted because of "environmental deficiencies." The lower court determined that the action of the Authority in condemning Leo's property was not unreasonable and was not made in bad faith. It also determined that the Authority had followed all of the procedural and due process provisions of the Eminent Domain Code, Act of June 22, 1964, Sp. Sess., P.L. 84, as amended, 26 P.S. ยง 1-101 et seq.

[ 13 Pa. Commw. Page 291]

Leo has presented issues to this Court which were not raised by the preliminary objections, and although the court below passed upon such issues, this Court will merely mention in passing that the established law in this Commonwealth is that structurally sound buildings, in an area properly declared to be a blighted area, are subject to condemnation. See Crawford v. Redevelopment Authority, 418 Pa. 549, 211 A.2d 866 (1965); St. Peter's Roman Catholic Parish v. Urban Redevelopment Authority of Pittsburgh, 394 Pa. 194, 146 A.2d 724 (1958); Oliver v. Clairton, 374 Pa. 333, 98 A.2d 47 (1953); and Golden Dawn Shops, Inc. v. Philadelphia Redevelopment Authority, 3 Pa. Commonwealth Ct. 314, 282 A.2d 395 (1971). Crawford, supra, teaches us that "[t]he power of discretion over what areas are to be considered blighted is solely within the power of the Authority. The only function of the courts in this matter is to see that the Authority has acted not in bad faith; to see that the Authority has not acted arbitrarily; to see that the Authority has followed the statutory procedures in making its ...


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