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A CONDEMNATION PROCEEDING REM BY REDEVELOPMENT AUTHORITY CITY PHILADELPHIA FOR PURPOSE REDEVELOPMENT WASHINGTON SQUARE REDEVELOPMENT AREA (05/20/76)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 20, 1976.

A CONDEMNATION PROCEEDING IN REM BY REDEVELOPMENT AUTHORITY OF THE CITY OF PHILADELPHIA FOR THE PURPOSE OF REDEVELOPMENT OF WASHINGTON SQUARE REDEVELOPMENT AREA, WASHINGTON SQUARE WEST URBAN RENEWAL AREA, UNIT NO. 2, PHILADELPHIA, INCLUDING CERTAIN LAND IMPROVEMENTS AND PROPERTIES. ASCO PARKING CORP., APPELLANT

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 Washington Square Redevelopment Area, Washington Square West Urban Renewal Area, Unit No. 2, Philadelphia, Including Certain Land Improvements and Properties. ASCO Parking Corp., 1125-37 Locust Street, No. 8026 March Term, 1969.

COUNSEL

Henry A. Stein, with him, of counsel, Mesirov, Gelman, Jaffe & Cramer, for appellant.

Donald Strumpf, with him Peter A Galante, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson. Judge Kramer did not participate in the decision in this case.

Author: Wilkinson

[ 24 Pa. Commw. Page 551]

This is an appeal from an order of the Court of Common Pleas of Philadelphia County, entered pursuant to Section 407(a) of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-407(a), which decreed that a writ of possession issue for premises occupied by appellant. We affirm.

On April 1, 1969, the Redevelopment Authority of the City of Philadelphia (Authority) filed a declaration of taking, condemning property which included premises located at 1125-37 Locust Street, Philadelphia. These premises were leased and operated by appellant as a multi-level parking garage. Despite the condemnation, appellant continued its possession and operation of the premises as a parking facility. In October, 1971, appellant, as tenant, and the Authority, as landlord, entered into a written lease agreement.*fn1

However, by a writing dated April 9, 1974, captioned "NOTICE TO VACATE", the Authority gave appellant 90 days to surrender possession of the premises. Appellant refused and the Authority filed a petition with the lower court for a writ of possession under Section 407(a) of the Eminent Domain Code, 26 P.S. § 1-407(a). Following the granting of a rule upon appellant to show cause why the writ should not issue, the filing of an answer to the petition by appellant, and the holding of evidentiary hearings, the court, on June 20, 1974, ordered the writ to issue. Appellant is now before this Court on appeal from that order.

First, appellant contends that the Authority is not entitled to a writ of possession since its relocation assistance program fails to satisfy the minimum requirements

[ 24 Pa. Commw. Page 552]

    of Section 205 of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (Relocation Act), 42 U.S.C. § 4625, and the regulations promulgated thereunder.*fn2 The court below refused to accept this argument, holding that appellant failed to demonstrate in what respects the Authority's relocation program does not comply with the Relocation Act. We must agree with the lower court.

[ 24 Pa. Commw. Page 553]

To support its contention, appellant relies on testimony, elicited under its cross-examination of the Authority's commercial and industrial relocation specialist, that the Authority, through the invited cooperation of Philadelphia real estate brokers, maintains listings for properties available to displaced businesses.*fn3 Appellant concludes that this testimony establishes that the Authority's relocation program consists " solely of 'inviting listings' from area realtors," thus falling short of the Relocation Act requirements. This is an unwarranted conclusion.

[ 24 Pa. Commw. Page 554]

The testimony of the relocation specialist was given in response to a question whether the Authority kept current information of rental properties available to displacees. It was not given in response to a question regarding the extent of relocation services provided by the Authority. Consequently, the testimony does not support appellant's contention. Moreover, a careful review of the record fails to disclose any other evidentiary support. Accordingly, appellant's first argument must fail.

Second, appellant contends that even if the Authority's relocation program complies with the Relocation Act, it was not properly administered in the instant case.*fn4 The court below denied this contention, finding that the Authority was "ready, willing and able" to provide appellant relocation assistance but that appellant never attempted

[ 24 Pa. Commw. Page 555]

    to act on the Authority's offer and had been frustrated. Specifically, the court relied on the following language contained in the April 9, 1974 "NOTICE TO VACATE":

"The Redevelopment Authority personnel will continue to confer with you in an attempt to assist you in finding a new location to carry on your activities. We shall continue to provide this service to you and our relocation specialist can be reached at the Redevelopment Authority Office, Penn Square Building, Suite 500, 1317 Filbert Street, Telephone 665-9880.

"We will continue to provide this service for your convenience and assistance, but it is your responsibility to remove from these premises in accordance with this notice."

Again, we are constrained to agree with the lower court. The language quoted above indicates that the Authority made a realistic effort, under the circumstances in this case,*fn5 to offer relocation assistance to appellant, a commercial corporate tenant. The record, however, contains no evidence whatsoever that appellant attempted to avail itself of this offer. Therefore, appellant cannot now complain that it failed to receive assistance from the Authority. Accordingly, appellant's second argument must also fail.

Finally, appellant contends that the Authority, as a governmental landlord, may not, consistent with due process of law, exercise its right to terminate the landlord-tenant relationship with appellant and remove the

[ 24 Pa. Commw. Page 556]

    latter from the Locust Street premises without first demonstrating good cause.*fn6 It is undisputed that the purpose of the Authority in seeking possession of the property is to demolish the building thereon in order to attract potential developers by improving the visual appearance of the property and others nearby -- in short, to increase the marketability of the properties. Appellant asserts that this purpose does not constitute good cause and that any writ of possession grounded thereon results in an arbitrary and capricious deprivation of its property contrary to due process.*fn7 We cannot agree.

[ 24 Pa. Commw. Page 557]

Increasing the marketability of the Locust Street and nearby properties promotes the larger purpose of eliminating and redeveloping a blighted area in which these properties lie.*fn8 This larger purpose, as emphasized by the court below, has been recognized by our Supreme Court as a legitimate public concern. Belovsky v. Redevelopment Page 557} Authority, 357 Pa. 329, 54 A.2d 277 (1947). Therefore, any action reasonably related to this purpose -- which we find to be the case here -- is sufficient cause to allow a governmental landlord to assert an existing right to terminate a landlord-tenant relationship and to remove the tenant without violating due process. Accordingly, appellant's final argument must likewise fail.*fn9

Affirmed.

Judge Kramer did not participate in the decision in this case.

Disposition

Affirmed.


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