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REDEVELOPMENT AUTHORITY CITY WILKES-BARRE v. STANLEY SERAFIN AND MARY A. SERAFIN (07/27/79)

decided: July 27, 1979.

REDEVELOPMENT AUTHORITY OF THE CITY OF WILKES-BARRE
v.
STANLEY SERAFIN AND MARY A. SERAFIN, HIS WIFE, STANLEY SERAFIN TRUCKING, OR ANY OTHER PERSON OR PERSONS FOUND TO HAVE AN INTEREST IN THE PROPERTY. STANLEY SERAFIN AND MARY A. SERAFIN, HIS WIFE, STANLEY SERAFIN TRUCKING, APPELLANTS



Appeal from the Order of the Court of Common Pleas of Luzerne County in case of Redevelopment Authority of the City of Wilkes-Barre v. Stanley Serafin and Mary A. Serafin, his wife, Stanley Serafin Trucking, or any other Person or Persons Found to Have an Interest in the Property, No. 5055 of 1975.

COUNSEL

A. Peter Kanjorski, with him Paul E. Kanjorski, and Kanjorski & Kanjorski, for appellants.

Hugh F. Mundy, Donald D. McFadden, and Flanagan, Doran, Biscontini & Shaffer, for appellee.

Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 44 Pa. Commw. Page 464]

This is an appeal from an order of the Court of Common Pleas of Luzerne County making absolute a rule on the appellants, Stanley and Mary Serafin and Serafin Trucking, to show cause why a writ of possession should not issue. The rule was issued pursuant to Section 407(a) of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-407(a).

[ 44 Pa. Commw. Page 465]

The Redevelopment Authority of Wilkes-Barre (Authority) condemned the appellants' property in 1975 by the filing of a Declaration of Taking. The appellants filed preliminary objections which were dismissed by an order of the court below, affirmed on appeal to this Court in Redevelopment Authority of the Page 465} City of Wilkes-Barre v. Serafin, 27 Pa. Commonwealth Ct. 338, 365 A.2d 456 (1976). The Authority then offered to pay the appellants estimated just compensation in the amount of $66,295, but the appellants refused to accept the payment. The Authority, pursuant to Section 522 of the Code, 26 P.S. § 1-522, filed its petition for leave to pay the estimated just compensation and costs into court. The court below granted the prayer of the petition. The Authority filed with the Prothonotary a praecipe for rule on the appellants to show cause why a writ of possession should not issue, pursuant to Section 407(a). As we first noted, the court made the rule absolute, from which action the Serafins have appealed. The court below stayed the writ pending appeal, and the Authority as we understand does not yet have possession.

The appellants filed no answer to the Authority's petition for leave to pay the estimated just compensation and costs in the court and they filed no answer to the rule to show cause. We learn from briefs of the parties filed on the occasion of this appeal that the parties met with the court below in chambers after the issuance of the rule for writ of possession, that the court declared its willingness to hear legal argument but expressed its belief that it was not required to hear evidence, as the appellants urged, on the issue of whether the Authority's estimate of just compensation had been arrived at, as the appellants say here, "in compliance with the Code and take [sic] into consideration all of the elements of damages which the Code defines as being just compensation." Apparently, since the appellants' sole argument was that the court was required to conduct a hearing on the issue just described, the court made the rule absolute without a hearing.

The appellants here say, as they did below, that the court must conduct an evidentiary hearing on the subject

[ 44 Pa. Commw. Page 466]

    just mentioned and in addition that at such hearing the condemnor has the "affirmative duty" to establish that in arriving at estimated just compensation it did consider all of the elements required by the Code.

In In re Condemnation by City of Philadelphia of Leasehold of Airportels, Inc., 40 Pa. Commonwealth Ct. 409, 398 A.2d 224 (1979), we were confronted with a condemnor's contention exactly contrary to that of the condemnees here. There the condemnor contended that in a Section 407(b) proceeding, the court is without power or authority to enter into any inquiry with respect to the condemnor's estimate of just compensation, including any inquiry with respect to the condemnor's motives in arriving at an amount to declare as estimated just compensation. We rejected the condemnor's contention there, as we now reject the appellants' contention that the court is required in every case where condemnee demands it, to conduct an inquiry into how the ...


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