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A CONDEMNATION PROCEEDING REM BY REDEVELOPMENT AUTHORITY CITY PHILADELPHIA FOR PURPOSE REDEVELOPMENT CENTER CITY REDEVELOPMENT AREA (01/08/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 8, 1979.

A CONDEMNATION PROCEEDING IN REM BY REDEVELOPMENT AUTHORITY OF THE CITY OF PHILADELPHIA FOR THE PURPOSE OF REDEVELOPMENT OF CENTER CITY REDEVELOPMENT AREA, FRANKLIN TOWN PROJECT, PHILADELPHIA, INCLUDING CERTAIN LAND, IMPROVEMENTS AND PROPERTIES. PREMISES: 1706-10 CALLOWHILL STREET. OWNER: UNION ELECTRIC CONTRACTING COMPANY. UNION ELECTRIC CONTRACTING COMPANY, 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 Center City Redevelopment Area, Franklin Town project, Philadelphia, Including Certain Land, Improvements and Properties. Owner: Union Electric Contracting Company, No. 4488 April Term, 1973.

COUNSEL

J. Willison Smith, Jr., for appellant.

William T. Steerman, Special Counsel, with him Peter A. Galante, General Counsel, for appellee.

Judges Crumlish, Jr., Wilkinson, Jr. and MacPhail, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 39 Pa. Commw. Page 585]

The instant appeal arises from attempts by the Union Electric Contracting Company (Condemnee) to obtain special damages for displacement*fn1 prior to its move from the condemned premises.

On April 23, 1973, the Redevelopment Authority of the City of Philadelphia (Authority) filed a declaration of taking of an area designated as the Franklin Town Urban Renewal Area comprising approximately 50 acres within the City. This area included 1706-1710 Callowhill Street, the site of Condemnee's business for

[ 39 Pa. Commw. Page 58644]

years. A Board of Viewers was appointed on September 17, 1973. The Authority deposited $93,500.00*fn2 with the Court of Common Pleas of Philadelphia County on October 20, 1975, and a Writ of Possession was subsequently granted to the Authority.

On December 3, 1976, Condemnee alleged its status as a hardship case and filed with the lower court a petition and rule to show cause why the Authority should not be required to make the maximum payment for special damages authorized under Article VI-A of the Eminent Domain Code (Code)*fn3 in advance of Condemnee's removal from Callowhill Street. Subsequent to the Authority's filing an answer thereto and prior to a hearing on the petition, Condemnee voluntarily surrendered possession of the premises,*fn4 in accordance with a stipulation by which the claims for special damages made in Condemnee's petition were preserved upon receipt of the $93,500.00, deposited by the Authority.

Upon the Authority's motion, the court below dismissed Condemnee's petition and rule on February 11, 1977. This appeal followed.

The Authority has moved that Condemnee's appeal be dismissed; the matter is now before us on the motion to dismiss and on the merits. Since we grant the motion to dismiss, we will not examine the merits of Condemnee's petition and rule.

The basic question involved, i.e., whether or not Condemnee is entitled to payment of special damages

[ 39 Pa. Commw. Page 587]

    dislocation expenses, and moving expenses.*fn6 Once a Board of Viewers has been appointed, it has jurisdiction over all claims for special damages, Mobil Oil Corp. v. Department of Transportation, 11 Pa. Commonwealth Ct. 593, 315 A.2d 639 (1974), and a court of common pleas has jurisdiction to determine such damages only when the claim is before it on a de novo appeal from the Board of Viewers' award. Appeal of Kenig, 25 Pa. Commonwealth Ct. 504, 360 A.2d 776 (1976).

Condemnee should have asserted its claim before the appointed Board of Viewers.

Accordingly, we

Order

And Now, this 8th day of January, 1979, the motion to dismiss by Appellee, the Redevelopment Authority of the City of Philadelphia, is hereby granted and the appeal of Appellant, Union Electric Contracting Company, is hereby dismissed.

Disposition

Appeal dismissed.


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