Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Helen E. Beckman and Wilson W. Movic, Administrators of the Estate of Clarence M. Raible, deceased, v. Redevelopment Authority of McKeesport, No. GD-75-7372.
Thomas J. Dempsey, for appellant.
Robert Palkovitz, with him Palkovitz and Palkovitz, for appellees.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer.
[ 30 Pa. Commw. Page 577]
The issue raised in this appeal from a lower court's dismissal of preliminary objections to a petition for appointment of viewers is whether the evidence supports an alleged de facto taking.
Helen E. Beckman and Wilson W. Movic (petitioners) are the administrators of the estate of Clarence M. Raible. They are also the administrators of the estate of George J. Raible. During their lifetimes, the Raible brothers individually acquired two contiguous lots by separate deeds apparently executed the same day by the same grantor. The lots were used as a parking lot in the City of McKeesport, Allegheny County.
In April of 1975, petitioners filed a petition for the appointment of viewers, 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), alleging the liability of the Redevelopment Authority of
[ 30 Pa. Commw. Page 578]
the City of McKeesport (Authority) for the payment of damages for the taking of the parking lot property. They averred that the Authority, on or about January 1, 1973, took possession of the parking lot property but did not make any offer of payment for the same and that subsequent thereto it has authorized and directed a developer to take possession thereof and utilize the same. The Authority filed preliminary objections asserting, inter alia, the failure of the petition to state a cause of action in the nature of a de facto taking.*fn1 The objections were answered by petitioners, and the matter proceeded to an evidentiary hearing before the Court of Common Pleas of Allegheny County.
At the hearing, petitioners' sole witness was one of the attorneys for the estate, the partner of the attorney representing the estate at the evidentiary hearing. He testified that, on or about January 1, 1973, the Authority took possession of the subject property through the company hired to wreck a nearby building. On cross-examination, the attorney explained that sometime near the beginning of 1973 he had seen a crane and two trucks on the parking lot. While he remembered that some of the three vehicles were marked with an erecting company's name, he was unsure of the name. Moreover, while he repeatedly stated that his observations were his sole source of knowledge on the issue of the alleged taking by the Authority, he did not explain how his observations afforded him personal knowledge that the Authority had hired
[ 30 Pa. Commw. Page 579]
the contractor whose name appeared on ...