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decided: July 10, 1980.


Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Cass Plumbing & Heating Company, Inc.; Louis A. Troiani, Jr., Julius B. Troiani and Reynold D. Troiani, individually and trading as Troiani Parking; William Jacobowitz and Rifkie Jacobowitz, husband and wife, and William Jacobowitz, individually and trading as Federal Paint & Hardware Company; and Susanna K. Ferris, Louise A. Kirner and Clara Kirner, individually and trading as Frank H. Kirner v. PPG Industries, Inc., Urban Redevelopment Authority of Pittsburgh and City of Pittsburgh, No. G.D. 79-14341.


Thomas J. Dempsey, for appellants.

Philip Baskin, with him George R. Specter, Baskin & Sears, for PPG Industries, Inc., appellee.

D. R. Pellegrini, Deputy City Solicitor, with him John O. Wicks, Jr., General Counsel, Sharon M. O'Neill, Assistant Counsel, V. L. St. Johns, Assistant City Solicitor and Mead J. Mulvihill, Jr., for Urban Redevelopment Authority and City of Pittsburgh, appellees.

President Judge Crumlish and Judges Wilkinson, Jr., Mencer, Rogers, Blatt, Craig and Williams, Jr. Judge MacPhail did not participate. Opinion by Judge Rogers. Judge Williams concurs in result only. Dissenting Opinion by Judge Blatt.

Author: Rogers

[ 52 Pa. Commw. Page 603]

The appellants, plaintiffs below, have appealed from an order of the Court of Common Pleas of Allegheny County sustaining preliminary objections to, and dismissing, their amended complaint in equity. The appellants are the owners of properties on or near Market Street in downtown Pittsburgh located in what has been designated by city authorities as Redevelopment Area No. 44. The appellees, defendants below, are the City of Pittsburgh, the Urban Redevelopment Authority of Pittsburgh (URA) and PPG Industries, Inc. (PPG). The preliminary objections which were sustained (a number of others having been overruled) were a demurrer, a question as to the jurisdiction of equity and the objection of the existence of a remedy at law.

We learn from the well pleaded facts of the amended complaint that the city Planning Commission on July 6, 1978 certified as blighted, within the intendment of the Urban Redevelopment Law,*fn1 an area of the city which included the appellants' properties; that the Planning Commission thereafter prepared a Redevelopment Area Plan and presented it to the URA; that this plan provided for the sale of portions of the area certified as blighted to PPG, a private

[ 52 Pa. Commw. Page 604]

    corporation, for its use as the site of a corporate headquarters and as rental properties to be constructed by PPG; that URA has approved the Redevelopment Area Plan; that URA has also approved agreements with the city providing for street vacations and dedications, rezoning, financing of public improvements and other matters; that URA has approved an agreement with PPG for the purchase by PPG of designated parcels of the project; that URA has approved an agreement with an owner of land and buildings in the project for the acquisition and relocation of its properties; and that there exists a draft of a contract between URA and PPG providing that PPG will pay URA a service fee and other expenses incurred by the latter in preparing the land of the project for PPG's use. The plaintiffs allege that these activities, and others unnecessary here to mention, show that URA and the City have been acting as agents of PPG to acquire for it the plaintiffs' property for PPG's primary gain and benefit and that the actions of the defendants have been taken arbitrarily, capriciously, in bad faith and in disregard of plaintiffs' rights.

It is important, before leaving the discussion of the circumstances, to emphasize that the original complaint was filed on May 29, 1979, the amended complaint was filed on June 15, 1979 and the preliminary objections were disposed of in the court below on August 10, 1979. The appeal to this court was filed September 6, 1979. In late January 1980 the appellees, defendants below, filed a Motion to Dismiss the Appeal, in which they allege that on May 31, 1979 City Council had conducted a public hearing on the redevelopment proposal as required by the Urban Redevelopment Law, at which the appellants appeared and were heard; that on July 21, 1979 City Council approved the proposal; that declarations of taking of all the appellants' properties were filed on January

[ 52 Pa. Commw. Page 60518]

, 1980; and that by reason of these events and the present availability of the remedies provided by the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-101 et seq., all of the issues in this appeal are moot.

The amended complaint is in seven counts.

In Count I the plaintiffs say that the Urban Redevelopment Law denies them due process because it does not require, and they were not provided, notice or hearing before the area in which their properties are located was certified as blighted by the city Planning Commission. They ask that the Urban Redevelopment Law be declared unconstitutional "under the facts of this case and void as applying to the plaintiffs" and seek an injunction against the acquisition of their properties. The court below described the procedures ordained by the Urban Redevelopment Law -- certification of blight by the planning agency; the preparation of a redevelopment proposal by the URA; and certification of the proposal to the governing body which, after public hearing, may approve execution of the project by URA, including by exercise of the power of eminent domain. The court then noted that the Act had been upheld against other constitutional attacks in Belovsky v. Redevelopment Authority of Philadelphia, 357 Pa. 329, 54 A.2d 277 (1947), but acknowledged that the plaintiffs' charge of want of procedural due process for lack of notice and hearing, was of first instance. It concluded that since property is not taken or interfered with by the certification of blight, citing Hazelton Redevelopment Authority v. Hudock, 2 Pa. Commonwealth Ct. 670, 281 A.2d 914 (1971), and since the Urban Redevelopment Law requires that a public hearing be conducted by the governing body prior to acting on the redevelopment proposal, due process was afforded; and it sustained the demurrer to this count.

[ 52 Pa. Commw. Page 606]

In Hazelton Redevelopment Authority v. Hudock, supra, the issue was whether the activities of the Hazelton Redevelopment Authority were a de facto taking and we decided that "the preliminary actions by the Redevelopment Authority in designating the subject premises as part of a renewal area and undertaking negotiations to acquire the property and others do not constitute substantial interference with the owner's use and enjoyment of his land, amounting to a legally effective 'taking'." 2 Pa. Commonwealth Ct. at 674, 281 A.2d at 916-17. However, in the same case we were at pains to say that the "activities carried on incident to massive, complex and time-consuming programs launched by government . . . may so substantially interfere with . . . property as to constitute a compensable injury" (emphasis in original), 2 Pa. Commonwealth Ct. at 675, 281 A.2d at 917, and we directed readers' attention to Commonwealth's Crosstown Expressway Appeal, 3 Pa. Commonwealth Ct. 1, 281 A.2d 909 (1971), where we upheld the action of a trial court overruling preliminary objections to a petition for the appointment of viewers alleging activities quite similar to those attributed to the defendants in this case. See Conroy-Prugh Glass Co. v. Commonwealth, 456 Pa. 384, 321 A.2d 598 (1974); Snitzer, Pennsylvania Eminent Domain § 201(1)-(b). Hence, we do not agree that the amended complaint, which contains averments that the plaintiffs' properties can no longer be sold or mortgaged, that tenants have declined to renew their leases, and that vandalism and other forms of deterioration have occurred -- so fail to describe injury to or interference with rights in property as to cause this count to fall before a demurrer.

Nor can we agree that it was clear on the face of the amended complaint, which spoke as of a time before the city had, or was obliged to, conduct a public hearing, that the plaintiffs' rights ...

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