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RUBIN GANS AND PEARL GANS v. CITY PHILADELPHIA (06/29/79)

decided: June 29, 1979.

RUBIN GANS AND PEARL GANS, APPELLANTS
v.
CITY OF PHILADELPHIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Rubin Gans and Pearl Gans v. City of Philadelphia, No. 910 May Term, 1977.

COUNSEL

Dennis L. Friedman, with him Leon W. Silverman, and Stein & Silverman, for appellants.

Barbara R. Axelrod, Assistant City Solicitor, with her James M. Penny, Jr., Deputy City Solicitor, and Sheldon L. Albert, City Solicitor, for appellee.

President Judge Bowman, and Judges Crumlish, Jr., Wilkinson, Jr., Rogers, Blatt, Craig and MacPhail. Judges Mencer and DiSalle did not participate. Opinion by Judge MacPhail.

Author: Macphail

[ 43 Pa. Commw. Page 636]

Rubin and Pearl Gans (Appellants) appeal to this Court from an order of the Court of Common Pleas of Philadelphia County sustaining the preliminary objections of the City of Philadelphia (City) to Appellants' petition to appoint a board of view pursuant to Section 502 of the Eminent Domain Code, Act of June 22, 1964,

[ 43 Pa. Commw. Page 637]

Special Sess. P.L. 84, as amended, 26 P.S. § 1-502. Appellants raise five issues for our consideration. All deal with whether the City acted properly in demolishing a building owned by Appellants and whether Appellants' cause of action will lie in eminent domain. The lower court held that Appellants were precluded from pursuing their claim because they failed to exhaust their administrative remedies and because the City's demolition of their property was a proper exercise of its police power and not a taking as required for an eminent domain proceeding. We agree that Appellants failed to exhaust their administrative remedies and, therefore, we affirm.

The City's Department of Licenses and Inspections (Department) was established pursuant to the Philadelphia Home Rule Charter. 351 Pa. Code § 3.3-100(f). By the terms of the Charter, the Department

     shall . . . administer and enforce all statutes, ordinances and regulations for the protection of persons and property from hazards, in the use, condition, erection, alteration, maintenance, repair, sanitation . . . , removal and demolition of buildings and structures or any parts thereof. . . .

Id. at § 5.5-1002(a). The Department's enforcement authority includes the duty, upon finding a violation of a statute, regulation, or ordinance which it is bound to enforce, to make an order or to "take such other lawful action as may be necessary to correct the dangerous or unlawful condition. . . ." Id. at § 5.5-1002(d). Anyone aggrieved by a notice, order, or other action resulting from a City inspection shall be furnished, upon request, with a written statement of the reasons for the action taken and shall be afforded a hearing by the Board of License and Inspection Review (Board). Upon the hearing, the Board shall take evidence, make

[ 43 Pa. Commw. Page 638]

    findings, and render a written decision. ...


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