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CONDEMNATION 1711-13 VINE STREET v. FRANKLIN TOWN CORPORATION (12/05/80)

decided: December 5, 1980.

CONDEMNATION OF 1711-13 VINE STREET, PHILADELPHIA, PENNSYLVANIA BY COMMONWEALTH OF PENNSYLVANIA, REDEVELOPMENT AUTHORITY OF THE CITY OF PHILADELPHIA; AND FRANKLIN TOWN CORPORATION (RADIO BROADCASTING CO.) RADIO BROADCASTING COMPANY, APPELLANT. RADIO BROADCASTING COMPANY, APPELLANT
v.
FRANKLIN TOWN CORPORATION, ET AL., APPELLEES



Appeals from the Orders of the Court of Common Pleas of Philadelphia County in the case of Condemnation of 1711-13 Vine Street, Philadelphia, Pa. by Commonwealth of Pennsylvania; Redevelopment Authority of the City of Philadelphia; and Franklin Town Corporation, No. 3985 February Term, 1978, and in the case of Radio Broadcasting Corporation v. Franklin Town Corporation and Redevelopment Authority of the City of Philadelphia and Richard Roe and John Doe, and Others, No. 872 February Term, 1979.

COUNSEL

C. George Milner, for appellant, Radio Broadcasting Company.

William T. Steerman, Special Counsel, with him Peter A. Galante, General Counsel, for appellee, Redevelopment Authority of the City of Philadelphia.

David S. Machlowitz, of counsel, Ballard, Spahr, Andrews & Ingersoll, for appellee, Franklin Town Corporation.

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

Author: Rogers

[ 55 Pa. Commw. Page 149]

The appellant in this essentially eminent domain case, Radio Broadcasting Corporation (RBC), formerly a tenant occupying portions of a building at 1711-13 Vine Street, Philadelphia, is in pursuit of compensation or money damages from the Commonwealth of Pennsylvania acting by the Department of Transportation (PennDOT),*fn1 the Redevelopment Authority of Philadelphia, and Franklin Town Corporation, a privately owned business corporation. To this end it instituted in the Court of Common Pleas of Philadelphia County two separate personal actions sounding in trespass, assumpsit and for declaratory judgment against the Redevelopment Authority, Franklin Town and fictionally named individuals. It also filed an original and amended Petition for the Appointment of Viewers, pursuant to Section 502 of the Eminent Domain Code, Act of June 22, 1964, Spec. Sess. P.L. 84, as amended, 26 P.S. § 1-502, naming the Commonwealth, the Redevelopment Authority and Franklin Town as respondents. RBC's amended Petition for the Appointment of Viewers, and a fourth action, an eminent domain proceeding commenced by PennDOT's filing of a Declaration of Taking of a portion of 1711-13 Vine Street, and one of RBC's personal actions were consolidated below into a single action captioned Condemnation of 1711-13 Vine Street by the Commonwealth of Pennsylvania, Redevelopment Authority of Philadelphia and Franklin Town Corporation, leaving separate the remaining personal action against the Redevelopment Authority, Franklin Town and unidentified individuals. The Redevelopment Authority and Franklin Town filed preliminary objections in the nature of demurrers to the consolidated eminent domain

[ 55 Pa. Commw. Page 150]

    proceeding and to the personal action in trespass, assumpsit and for declaratory judgment. The court below sustained both demurrers. No objection is made to any of the procedures below or to the conduct of the hearing. RBC has appealed*fn2 from the orders dismissing its actions contending that the court below committed errors of law in holding (1) that the personal action should fail because RBC had not stated a cause of action other than one depending entirely upon RBC's entitlement to an award under the Eminent Domain Code, and (2) that RBC was not a displaced person entitled to the reimbursement for expenses and losses incurred in moving from 1711-13 Vine Street, provided by Article VI-A of the Eminent Domain Code. We affirm the orders below.

With respect to the personal action in assumpsit, trespass and for a declaratory judgment, as Judge Jacob Kalish who had the matter in charge below pointed out, RBC's cause is based upon a so-called Assistance Agreement between the Redevelopment Authority and Franklin Town Corporation under which Franklin Town, a redeveloper, agreed to pay any compensation the Redevelopment Authority might have to pay to displaced persons in accordance with the standards of the Federal Uniform Relocation Assistance Act, 42 U.S.C. § 4601 et seq., (which standards are incorporated in Section 601-A of the Eminent Domain Code).*fn3 RBC avers that it is a displaced person under those standards and therefore a third party beneficiary of the Assistance Agreement. The court below correctly concluded that since RBC's entitlement to any benefits of the Assistance Agreement depended

[ 55 Pa. Commw. Page 151]

    on its being a displaced person under Article VI-A of the Eminent Domain Code, its remedy was by proceeding under the Code, as indeed it had done.

After conducting two days of evidentiary hearings with respect to Redevelopment Authority's and Franklin Town's preliminary objections to RBC's petition for the Appointment of Viewers, Judge Kalish made the following findings of fact which constitute an economical and accurate statement of the facts:

1. Radio Broadcasting Company ("RBC") is a Pennsylvania corporation engaged in the radio wave communication business, and at all times material was the holder of a Public Utilities Commission certificate requiring RBC to provide continuous service.

2. Redevelopment Authority of the City of Philadelphia ("Redevelopment Authority") is an urban redevelopment authority vested with the power of eminent domain.

3. Franklin Town Corporation ("Franklin Town") is a Pennsylvania corporation privately held and financed.

4. Department of Transportation-Commonwealth of Pennsylvania ("PennDOT") is a Department of State government vested with the power of eminent domain.

5. Albert and Edith Glassberg (hereinafter "Owners") at all times material owned 1711-13 Vine Street, Philadelphia, Pennsylvania.

6. On June 16, 1960 the Owners leased the second floor of 1711-13 Vine Street to RBC for a term of 3 years, with annual renewals thereafter unless terminated by 90 day notice.

7. Thereafter RBC occupied the second floor of 1711-13 Vine Street, and later on enjoyed ...


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