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A CONDEMNATION REM BY REDEVELOPMENT AUTHORITY CITY JOHNSTOWN ETC. STEPHEN J. CONWAY (07/15/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 15, 1981.

A CONDEMNATION IN REM BY THE REDEVELOPMENT AUTHORITY OF THE CITY OF JOHNSTOWN ETC. STEPHEN J. CONWAY, JR., APPELLANT. A CONDEMNATION IN REM BY THE REDEVELOPMENT AUTHORITY OF THE CITY OF JOHNSTOWN ETC. REDEVELOPMENT AUTHORITY OF THE CITY OF JOHNSTOWN, APPELLANT

Appeals from the Order of the Court of Common Pleas of Cambria County in the case of A condemnation in rem by the Redevelopment Authority of the City of Johnstown for the purpose of redevelopment of the Lee Hospital Medical Arts Center Urban Renewal Area, in the Second Ward, City of Johnstown, including certain land, improvements and properties, No. 5507 of 1979.

COUNSEL

Peter G. Loftus, for appellant, Stephen J. Conway, Jr.

Philip J. Katauskas, with him Michael Sklaroff and James D. Crawford, Schnader, Harrison, Segal & Lewis, and Thomas M. Kalinyak, for appellee, Redevelopment Authority of the City of Johnstown.

Judges Mencer, Rogers and Williams, Jr., sitting as a panel of three. Opinion by Judge Mencer. Judge Rogers concurs in the result only.

Author: Mencer

[ 60 Pa. Commw. Page 521]

The Redevelopment Authority of the City of Johnstown (condemnor), on November 2, 1979, filed a declaration of taking relative to premises located at 316 Locust Street, Johnstown, Pennsylvania, and owned by Stephen J. Conway, Jr. (condemnee). These premises are located in a redevelopment project area known as the Lee Hospital Medical Arts Center Urban Renewal Area and, on November 2, 1979, were the site of the Stephen J. Conway Funeral Home.

The condemnee filed preliminary objections to the declaration of taking, contending, inter alia, that (a) the condemned area is not blighted, nor has it been designated as a blighted area, (b) the condemnation is for a private purpose and not a public purpose, (c) the bond attached to the declaration of taking is inadequate, insufficient, and valueless, and (d) the condemnor is not acting in good faith and is acting in an arbitrary and capricious manner.

[ 60 Pa. Commw. Page 522]

The condemnor filed an answer, and subsequently an amended answer, to the preliminary objections filed by the condemnee. On December 29, 1979, the condemnee filed a motion for continuance of the argument on his preliminary objections, scheduled for January 3, 1980, and requested an evidentiary hearing to establish of record the allegations of fact set forth in his preliminary objections. On January 3, 1980, the Court of Common Pleas of Cambria County denied condemnee's motion for continuance which contained the request for an evidentiary hearing. On February 11, 1980, the condemnee's preliminary objections were "denied and dismissed." This appeal followed*fn1 and we reverse and remand.

A contention that an area certified by a redevelopment authority is not, in fact, blighted directly challenges the power of the condemnor to condemn a specific property and is a question that must be decided by the courts on the basis of a record. Faranda Appeal, 420 Pa. 295, 216 A.2d 769 (1966).*fn2 Also, a

[ 60 Pa. Commw. Page 523]

    question of fact was raised by the preliminary objections as to the sufficiency of the condemnor's security. In order to make a determination on the merits of that contention, an adequate record should have been made before the trial judge dismissed the preliminary objections. Faris Appeal, 435 Pa. 55, 254 A.2d 653 (1969); Golden Dawn Shops, Inc. v. Philadelphia Redevelopment Authority, 3 Pa. Commonwealth Ct. 314, 282 A.2d 395 (1971).

Further, the condemnee here has alleged that the condemnor has condemned the premises in question for a private, not a public, purpose. This, of course, it has no power to do. Kramer Appeal, 438 Pa. 498, 266 A.2d 96 (1970); Price v. Philadelphia Parking Authority, 422 Pa. 317, 221 A.2d 138 (1966). This objection raises an issue of fact from the determination of which would follow a legal conclusion as to whether the condemnor had the power to acquire these premises. Preliminary objections are the exclusive means of challenging the power to condemn. Mahan v. Lower Merion Township, 418 Pa. 558, 212 A.2d 217 (1965). As there was no evidentiary hearing in the court below, it is impossible to know upon what facts, if any, the court below concluded, as it must have done, that the condemnation was for the

[ 60 Pa. Commw. Page 524]

    public purpose asserted by the condemnor and not the private purpose alleged by the condemnee. The condemnee was entitled to an evidentiary hearing on this issue. Kramer Appeal; Faranda Appeal; Golden Dawn Shops, Inc. v. Philadelphia Redevelopment Authority.

Accordingly, we can only conclude that the court below erred in dismissing the preliminary objections filed by the condemnee without an evidentiary hearing, and the case must be remanded with directions to the court below to hold an evidentiary hearing on the fact questions raised by the condemnee's preliminary objections.

Orders of February 11, 1980 (dismissing preliminary objections), April 29, 1980 (directing issuance of writ of possession, establishing estimated just compensation, and setting surety bond), and July 2, 1980 (directing issuance of writ of possession and denying condemnee's petition for supersedeas) vacated*fn3 and case remanded.

Order

And Now, this 15th day of July, 1981, the orders of the Court of Common Pleas of Cambria County, under dates of February 11, 1980 (dismissing condemnee's preliminary objections), April 29, 1980 (directing issuance of writ of possession upon condition that condemnor pay to Prothonotary for the

[ 60 Pa. Commw. Page 525]

    use of condemnee the sum of $411,244.69 and that condemnor file a surety bond of $1,700,000), and July 2, 1980 (directing issuance of writ of possession and denying condemnee's petition for supersedeas), are hereby vacated, and the case is remanded to the Court of Common Pleas of Cambria County, with directions to hold an evidentiary hearing on the fact questions raised by the condemnee's preliminary objections and thereafter to rule upon said preliminary objections.

Judge Rogers concurs in the result only.

Disposition

Reversed and remanded.


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