Appeal from the Order of the Court of Common Pleas of Allegheny County in case of In Re: Petition of Cornell Industrial Electric, Inc., a Pennsylvania corporation, and Cornell Cables, Incorporated, a Pennsylvania corporation, for the Appointment of Viewers to Ascertain the Just Compensation Due Petitioners Arising from the De Facto Condemnation of their Properties in the 21st Ward of the City of Pittsburgh, No. 3882 April Term, 1974.
Richard W. Kelly, for appellant.
Leonard M. Mendelson, with him William R. Grove, Jr., and Hollinshead and Mendelson, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson.
[ 19 Pa. Commw. Page 601]
This case arises from a Petition for Appointment of Viewers filed pursuant to Section 502(e) of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-502(e), by Cornell Industrial Electric, Inc., and Cornell Cables, Inc. (hereinafter jointly referred to as appellee). Appellee claims it is entitled to just compensation as a result of a de facto taking of its property located in the Manchester section of Pittsburgh by the Urban Redevelopment Authority of Pittsburgh (Authority). The Authority has filed preliminary objections, claiming appellee's petition: fails to set forth any grounds which would entitle appellee to damages; fails to set forth the date or manner of the alleged taking; and fails to set forth a cause of action under the Eminent Domain Code. After a full hearing, the Court of Common Pleas of Allegheny County, by Judge O'Malley, dismissed the Authority's preliminary objections, found the date of taking to be October 22, 1971, and appointed a Board of Viewers. The instant appeal followed.
In a very recent case involving somewhat similar circumstances in this same general area, our Supreme Court has held that a taking has occurred when the entity clothed with the power of eminent domain substantially deprives an owner of the use and enjoyment of his property. Conroy-Prugh Glass Co. v. Commonwealth, 456 Pa. 384, 321 A.2d 598 (1974). In the instant case, it is uncontested that the Authority was not clothed with the power of eminent domain until the Council of the City of Pittsburgh passed Ordinance 469 on October 22, 1970. Therefore, it is only after this date that a de facto taking could occur. However, even though we are dealing primarily with the acts of the Authority after October 22, 1970, this does not mean that actions and occurrences concerning this project prior to that date are not properly before the court below or this Court. A project of the magnitude and complexity of the Manchester Proposal requires a
[ 19 Pa. Commw. Page 602]
massive amount of preliminary study, investigation, negotiation, and planning before the formal approval of the final program of redevelopment. Therefore, the evidence on the record of what occurred prior to granting the Authority the power of eminent domain is relevant to ascertain whether the cumulative effect of the Authority's actions resulted in a de facto taking of appellee's property.*fn1
During 1969, appellee's president, having become aware of the possible inclusion of his company's property in the Manchester Redevelopment Project, contacted the Authority to determine how the project might affect appellee. The Authority's director advised appellee that their property was shown in the proposed plans to be acquired in early 1971. The Authority's chief negotiator testified he later told appellee's president:
"A. He [meaning appellee's property] was going to be acquired. There was no reason in the world why he wasn't going to. It was on the map. We had the money. . . . It was approved. . . . It seems to me I was talking about a year['s time]."
In fact, there doesn't appear to be any question that appellee's property would ultimately be acquired by the Authority under the plan.
Consistent with this expected acquisition, the Authority's representatives also suggested to appellee that it should be prepared to relocate sometime before the acquisition. Relying on the Authority's ...