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CITY PHILADELPHIA v. STERLING METALWARE COMPANY (01/04/80)

decided: January 4, 1980.

THE CITY OF PHILADELPHIA, APPELLANT
v.
STERLING METALWARE COMPANY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of In Re: Sterling Metalware Company v. The City of Philadelphia, No. 2463 March Term, 1977.

COUNSEL

Agostino Cammisa, Assistant City Solicitor, with him Sheldon L. Albert, City Solicitor, Edgar R. Einhorn, Deputy City Solicitor, and James M. Penny, Jr., Deputy City Solicitor, for appellant.

Larry Haft, with him Norman Perlberger, of counsel, Blank, Rome, Comisky & McCauley, for appellees.

Judges Mencer, Blatt and Craig, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 48 Pa. Commw. Page 314]

The City of Philadelphia (City) appeals from the dismissal of its preliminary objections to a Petition

[ 48 Pa. Commw. Page 315]

    for Appointment of a Board of View. The said petition, filed by the Sterling Metalware Company (appellee), alleges a "de facto taking" under Section 612 of the Eminent Domain Code (Code),*fn1 and Court of Common Pleas of Philadelphia County found that sufficient evidence was presented by the appellee to establish a "de facto taking." We agree.

The appellee owns a metal fabrication business located at 2536 North Reese Street, Philadelphia. In July 1975, the Mayor of Philadelphia approved an ordinance which directed the striking and vacating of a portion of the 2600 block of North Reese Street. As a result of the street closing, tractor-trailers delivering material to the appellee's plant are unable to reach the Reese Street entrance and must instead deliver the material to another entrance of the plant which the appellee has argued is too small to receive it. Consequently the appellee argues that the city's action in closing the street deprived it of reasonable access to its property. It also argues that it has suffered a substantial and material loss for which compensation is due.

Our scope of review is, of course, limited to determining whether or not there is competent evidence in the record to support the findings made by the court below and as to whether or not an error of law was committed. Petition of Ramsey, 31 Pa. Commonwealth Ct. 182, 375 A.2d 886 (1977).

The City contends that the appellee has not been denied reasonable access. It argues that the installation of "No-Parking" signs on certain portions of Reese Street would make it possible for tractor-trailers to maneuver onto Reese Street and make deliveries as before. We note, however, that although the City

[ 48 Pa. Commw. Page 316]

    proposed this solution to the problem, it has taken no action to implement it, and the court below correctly concluded that mere promissory statements of some future intention by the City ...


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