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JOSEPH J. BALENT AND GEORGE BARTO v. CITY WILKES-BARRE (05/31/85)

decided: May 31, 1985.

JOSEPH J. BALENT AND GEORGE BARTO, APPELLANTS
v.
CITY OF WILKES-BARRE, APPELLEE



Appeal from the Order of the Court of Common Pleas of Luzerne County in the case of Joseph J. Balent and George Barto v. City of Wilkes-Barre, No. 2167-C of 1982.

COUNSEL

Mark A. Ciavarella, Jr., Lowery, Ciavarella & Rogers, for appellants.

Carl N. Frank, for appellee.

Judges Rogers and Colins and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Colins. Judge Williams, Jr. did not participate in the decision in this case. Dissenting Opinion by Senior Judge Kalish.

Author: Colins

[ 89 Pa. Commw. Page 579]

Joseph Balent and George Barto (Appellants), appeal from the order of the Court of Common Pleas of Luzerne County, dismissing their Petition for the Appointment of a Board of Viewers.

Appellants were the owners of a building which was seriously damaged by fire and was demolished by the City of Wilkes-Barre (City) approximately twenty months after the fire. They contend that the demolition constituted a de facto taking and petitioned for a Board of Viewers to be appointed in order to assess damages. The Court sustained the preliminary objections of the City and dismissed the petition, finding that the City's demolition of the building was an exercise of the police power and, therefore, non-compensable, rather than an exercise of eminent domain.

[ 89 Pa. Commw. Page 580]

The fire occurred on March 9, 1980, and the City notified Appellants on March 10, 1980 that they were to enclose the property and make whatever repairs were necessary to bring the building up to the Building Code standards by April 9, 1980. The letter also advised appellants that non-compliance could result in a fine or imprisonment, and that the order was appealable within ten days. The building was enclosed but other violations were not corrected. No appeal was filed and more than twenty months after the fire, the City had the building demolished.

After the demolition, appellants petitioned for the appointment of a Board of Viewers to determine the amount of compensation, and such was appointed in the Court of Common Pleas of Luzerne County. The City filed preliminary objections, alleging, in part, that the City was validly exercising its police power, not its power of eminent domain and thus the City was not required to compensate appellants. The lower court sustained the preliminary objection and the appellants bring this appeal, claiming that the demolition was an exercise of the City's power of eminent domain, not the police power, and that they should be compensated.

The power of eminent domain is distinguishable from the police power. The difference was clearly delineated in Redevelopment Authority of Oil City v. Woodring, 498 Pa. 180, 186, 445 A.2d 724, 727 (1982), where our Supreme Court declared that:

Police power involves the regulation of property to promote health, safety and general welfare and its exercise requires no compensation to the property owner, even if there is an actual taking or destruction of property, while eminent domain is the power to take property for public use, and compensation must be given

[ 89 Pa. Commw. Page 581]

    for property taken, injured or destroyed. White's Appeal, 287 Pa. 259, 264, 134 A. 409 (1926).

This Court has also distinguished eminent domain from police power in Northeast Outdoor Advertising, Inc. Appeal, 69 Pa. Commonwealth Ct. 609, 612, 452 A.2d 83, 85 (1982) stating that:

Police power should not be confused with that of eminent domain. Police power controls the use of property by the owner, for the public good, its use otherwise being harmful, while eminent domain and taxation take property for public use. Under eminent domain, compensation is given for property taken, injured or destroyed, while under the police power no payment is made for a diminution in use, even though it amounts to an actual taking or destruction of property. . . .

No matter how seemingly complete our scheme of private ownership may be under our system of government, all property is held in subordination of the right of its reasonable regulation by the government clearly necessary to preserve the health, safety, or morals of the people. Obedience to such regulation is not taking property without due process; that clause does not qualify the police power. (Quoting Reilly v. Department of Environmental Resources, 37 Pa. Commonwealth Ct. 608, 611, 391 A.2d 56, 58 (1978)).

President Judge Bowman, in discussing the extent of this police power, noted that:

[O]ur courts have consistently held an otherwise valid exercise of the police power does not effectuate a ...


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