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STEVEN FRIEDMAN v. CITY PHILADELPHIA (02/03/86)

decided: February 3, 1986.

STEVEN FRIEDMAN, D/B/A FOX SHIRT SHOPS AND MARTIN FRIEDMAN, APPELLANTS
v.
CITY OF PHILADELPHIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Steven Friedman, d/b/a Fox Shirt Shops and Martin Friedman v. City of Philadelphia, No. 816 August Term, 1982.

COUNSEL

T. J. Scully, with him, Andrew G. Gay, Gay & Chacker, P.C., for appellants.

Eileen V. Dooley, Thompson & Pennell, for appellee.

Judges MacPhail and Doyle, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 94 Pa. Commw. Page 573]

This is an appeal by Steven Friedman, d/b/a Fox Shirt Shops, and Martin Friedman (Appellants) from an order of the Court of Common Pleas of Philadelphia County which sustained the preliminary objections of the City of Philadelphia (City) to their petition for appointment of viewers to assess condemnation damages. The common pleas court found that Appellants' petition failed to allege facts sufficient to state a de facto taking and dismissed their petition. We reverse.

In August, 1982, Appellants filed in the Court of Common Pleas of Philadelphia County a petition for the appointment of viewers to assess condemnation damages against the City. The petition alleged that the City's construction activities regarding the Center City Commuter Tunnel Project (Tunnel) had resulted in a de facto taking of Appellant's business. Appellants leased a corner store in the Essex Hotel (Essex) located at the northwest corner of Thirteenth and Filbert Streets in Center City Philadelphia and which abuts the route officially designated for construction of the Tunnel. The underlying assertion is that the City's contractor had excavated the entire bed of Filbert Street; had erected scaffolding, fences, barricades, walkways, removed pavement and dug trenches

[ 94 Pa. Commw. Page 574]

    and had otherwise impeded pedestrian rights-of-way and the roadways about the northwest corner of Thirteenth and Filbert Streets; had engaged in activities hazardous to pedestrians; and had otherwise obstructed access to the doors and windows of Appellants' business premises. Appellants further allege that the loss of access to the doors and windows of their premises rendered it useless as a commercial property and as a result of the above-mentioned activities, they were forced to terminate their business as of January 1, 1981.

Appellants' petition was filed pursuant to Section 502(e) of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-502(e), and was based upon the theory that the City's Tunnel activities deprived them of the beneficial use of their lease at the Essex thereby destroying their business and inflicted a compensable injury, without a formal declaration of taking having been filed. On September 15, 1983, the common pleas court granted the City's preliminary objections to the petition finding as a matter of law that the allegations contained in the petition do not state a cause of action under the Eminent Domain Code. Appeal to this Court followed.

The sole issue presented for our disposition is whether the averments of Appellants' petition are sufficient to state a cause of action under the Eminent Domain Code. When confronted with a petition for appointment of viewers to which preliminary objections have been filed, a court must first decide whether as a matter of law the averments of the petition, taken as true, are sufficient to state a cause of action for a de facto taking. If not, the preliminary objections must be sustained and the petition dismissed. If the averments, taken as true, might establish a de facto taking, the common pleas court must take evidence so that a judicial determination might be

[ 94 Pa. Commw. Page 575]

    made. Petition of Ramsey, 20 Pa. Commonwealth Ct. 207, ...


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