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MARX STATIONERY AND PRINTING CO. ET AL. v. CITY PHILADELPHIA AND REDEVELOPMENT AUTHORITY PHILADELPHIA. REDEVELOPMENT AUTHORITY PHILADELPHIA (03/07/88)

decided: March 7, 1988.

MARX STATIONERY AND PRINTING CO. ET AL.
v.
CITY OF PHILADELPHIA AND REDEVELOPMENT AUTHORITY OF PHILADELPHIA. REDEVELOPMENT AUTHORITY OF PHILADELPHIA, APPELLANT



Appeal from the Order of the Court of Common Pleas of Philadelphia County, in case of Marx Stationery & Printing Co. et al. v. City of Philadelphia and Redevelopment Authority of Philadelphia, No. 1313 November Term, 1982.

COUNSEL

Dona S. Kahn, with him, Carol E. Tracy, Harris and Kahn, for appellant.

Eduardo C. Robreno, with him, Herbert M. Linsenberg, Meltzer and Schiffrin, for appellees.

Judges Colins and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish.

Author: Kalish

[ 114 Pa. Commw. Page 266]

Appellant, Redevelopment Authority of the City of Philadelphia (Redevelopment Authority) appeals an order of the Court of Common Pleas of Philadelphia County which overruled its preliminary objections and granted appellees', Marx Stationery et al. (tenants), petition for appointment of a Board of Viewers. We affirm the trial court's order, but for a reason other than that expressed in its opinion.

By an order dated August 10, 1981, and modified August 21, 1981, the trial court declared that the Harrison Building at 1001-23 Filbert Street, Philadelphia, Pennsylvania had been taken by the Redevelopment Authority in an inverse de facto taking. The Court also found that the tenants were tenants at the time of the taking and that it was the Redevelopment Authority and not the City that was the condemnor.

The owners of the building and the Redevelopment Authority appealed the trial court's decision to this court. While these appeals were pending, counsel for the tenants wrote to the Redevelopment Authority making a claim for leasehold damages and special moving damages. In this letter dated August 20, 1982, the tenants offered to stipulate with the Redevelopment Authority that they would wait for the decision on appeal,

[ 114 Pa. Commw. Page 267]

    and that if the decision would be upheld, the tenants' claims would be presented to the Board of Viewers as appointed. The Redevelopment Authority did not agree to this stipulation.

Also, while the appeals were pending, the owners of the building at the time of the August, 1981 order, the City of Philadelphia, the Redevelopment Authority and a prospective buyer of the building submitted a stipulation to the trial judge indicating that they had decided to sell the building to the prospective buyer, and to discontinue and withdraw the appeal. On August 1, 1983, this stipulation was approved by the court which then vacated the August, 1981 condemnation order.

On July 6, 1984, the tenants filed an amended petition for the appointment of a Board of Viewers to hear and determine their claims for damages. The tenants alleged that the court's order vacating the 1981 condemnation order was not a determination on the merits that the Redevelopment Authority had not made a de facto condemnation. Preliminary objections were dismissed as to both the City of Philadelphia and the Redevelopment Authority, and the tenants' petition for appointment of viewers was granted by the court. Thus, the only issue before this court is the validity of the claims of the tenants.

The Redevelopment Authority contends that the order of rescission was valid since it was made before the appeal was heard and that therefore there never was a valid order of condemnation. The tenants contend that the August 1, 1981 order declaring a de facto taking was a valid final order and that the subsequent order rescinding the 1981 order was not valid. As ...


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