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CONDEMNATION BY CITY PHILADELPHIA LEASEHOLD AIRPORTELS (02/12/79)

decided: February 12, 1979.

IN RE: CONDEMNATION BY CITY OF PHILADELPHIA OF LEASEHOLD OF AIRPORTELS, INC. CITY OF PHILADELPHIA, APPELLANT


Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of In Re: Condemnation by the City of Philadelphia of the Leasehold Interest of Airportels, Inc., in all Those Six Acres, More or Less with the Improvements Thereon Erected, Situate in the 40th Ward of the City of Philadelphia, Fronting on Essington Avenue and Located on the Philadelphia International Airport, No. 3516 May Term, 1973.

COUNSEL

John E. Walheim, for appellant.

Richard D. Solo, with him Solo, Padova & Lisi, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt, DiSalle, Craig and MacPhail. Opinion by Judge Rogers.

Author: Rogers

[ 40 Pa. Commw. Page 411]

The City of Philadelphia has appealed from a judgment in the amount of $4,400,000 entered against it in the Court of Common Pleas of Philadelphia County in favor of the appellee, Airportels, Inc.

On May 24, 1973, Airportels filed in the court below a petition for the appointment of viewers to ascertain

[ 40 Pa. Commw. Page 412]

    the just compensation due it as the result of an alleged de facto taking of its leasehold interest in a motel property located at the Philadelphia International Airport. The City failed to file a timely appeal from an order of the court below made December 28, 1973 dismissing its preliminary objections to Airportels' petition for the appointment of viewers. The City twice thereafter appealed to this Court from orders below dismissing efforts on the part of the City to circumvent the necessary result of its failure to appeal the dismissal of its preliminary objections, that result being that the City's opportunity to contest whether there had been a de facto taking was lost. In each instance we quashed the appeal. City of Philadelphia v. Airportels, Inc., 14 Pa. Commonwealth Ct. 617, 322 A.2d 727 (1974), and In re: Condemnation by the City of Philadelphia of the Leasehold Interest of Airportels, Inc., 21 Pa. Commonwealth Ct. 227, 344 A.2d 737 (1975). In the second of the two opinions he wrote for the court, filed in September 1975, Judge Mencer aptly described the litigation as a "dilatory procedural morass, resulting through no fault of Airportels", and expressed hope that this Court's action then taken would mark the close of the case. 21 Pa. Commonwealth Ct. at 229, 344 A.2d at 738. As appears, this was a hope not to be realized.

Airportels filed a petition in the court below tendering possession and asking for an order compelling the City to pay estimated just compensation. Because the City filed preliminary objections to this application, not until April 21, 1976 did the court below order the City to file a declaration of estimated just compensation. In response to that order, the City filed a declaration of estimated just compensation in which it stated:

[ 40 Pa. Commw. Page 413]

On the basis of two separate independent appraisals made by qualified Real Estate Appraisers who were engaged by the City of Philadelphia to value the leasehold interest of Airportels, Inc., as of March 15, 1973. [sic] These experts have both advised the City of Philadelphia that Airportels, Inc. has suffered no damages. Therefore, the City of Philadelphia's Declaration of Estimated Just Compensation is zero.

Airportels then filed a petition in the court below alleging that the City's Declaration of Just Compensation was made and filed in bad faith and asking for a rule on the City to show cause why the declaration should not be stricken from the record, why an impartial appraiser should not be appointed to estimate just compensation, and why judgment should not be entered in favor of Airportels on the amount of that appraisal. The rule was granted. After six days of hearing the court below ordered the rule made absolute. The City then filed its third appeal to this Court from this order. We quashed the appeal as interlocutory on Airportels' motion. The court below then appointed an impartial appraiser who reported as his estimate of just compensation for the taking of Airportels the amount $4,400,000. The court below entered judgment against the City and in favor of Airportels in that amount, plus interest from October 1, 1975 to the date of the order, January 27, 1978, as compensation for delay. The City has brought this, its fourth appeal in this case from that judgment.

The City makes an argument based on alleged abuses of discretion and prejudice in the manner in which the trial judge conducted the hearings on Airportels' petition to ...


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