Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Quaker City Gun Club v. City of Philadelphia, No. 4676 December Term, 1984.
Roland J. Christy, for appellant.
Joy J. Bernstein, Assistant City Solicitor, for appellee.
Judge MacPhail, and Senior Judges Rogers and Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.
[ 99 Pa. Commw. Page 260]
This is an eminent domain case wherein the Appellant, Quaker City Gun Club (Club), appeals here an order of the Court of Common Pleas of Philadelphia County. That order sustained preliminary objections in the nature of a demurrer filed by the City of Philadelphia (City) and dismissed the Club's Petition for Appointment of a Board of View.
The following well-pleaded facts are pertinent and deemed admitted for the purpose of reviewing the common pleas court's disposal of the City's preliminary objections. See Regelski v. F.W. Woolworth Co., 423 Pa. 524, 225 A.2d 561 (1967). From 1921 through 1984 the Club leased real property located at the rear of 8301 State Road in Philadelphia from the City. With the City's permission, the Club erected upon this property a club-house and six concrete trap houses, which the Club has averred did not become affixed to the real estate and remained the property of the Club. Sometime between February 1, 1984 and July 31, 1984, the club-house and trap houses were demolished by the City, without the Club's consent, as part of the City's expansion of the Philadelphia Detention Center.
On December 28, 1984, the Club filed a Petition for Appointment of a Board of View under Section 502(e) of the Eminent Domain Code (Code), Act of June 22,
[ 99 Pa. Commw. Page 2611964]
, Special Sess., P.L. 84, as amended, 26 P.S. § 1502(e), in which the Club contended that the City's action constituted a de facto taking of its property for which it is entitled to just compensation. The City filed preliminary objections to the petition and the common pleas court sustained the preliminary objections and dismissed the petition, without holding an evidentiary hearing, on the basis that the Club's petition stated a claim in trespass, not eminent domain. The Club has appealed the dismissal of its petition to this Court.
The sole issue raised by the Club on appeal is whether the common pleas court erred when it dismissed its petition without holding an evidentiary hearing. The City contends that the Club's appeal is frivolous and seeks an award of costs and reasonable counsel fees under Section 2503 of the Judicial Code, 42 Pa. C.S. § 2503, and Pa. R.A.P. 2744. We shall address first the Club's contention that the common pleas court erred in dismissing its petition without an evidentiary hearing.
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 under the Code 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 made. Friedman v. City of Philadelphia, 94 Pa. Commonwealth Ct. 572, 574, 503 A.2d 1110, 1111 (1986).
The common pleas court found that the Club had failed to allege that the claimed injury was the immediate, direct, necessary and unavoidable consequence of the City's ...