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ROBERT W. MCGAFFIC ET AL. v. REDEVELOPMENT AUTHORITY CITY NEW CASTLE AND CITY NEW CASTLE. REDEVELOPMENT AUTHORITY CITY NEW CASTLE (10/04/88)

decided: October 4, 1988.

ROBERT W. MCGAFFIC ET AL.
v.
REDEVELOPMENT AUTHORITY OF THE CITY OF NEW CASTLE AND THE CITY OF NEW CASTLE. REDEVELOPMENT AUTHORITY OF THE CITY OF NEW CASTLE, APPELLANT



Appeal from the Order of the Court of Common Pleas of Lawrence County in case of Robert W. McGaffic, Executor of the Estate of Eleanor L. McGaffic and Robert W. McGaffic, in his own right v. The Redevelopment Authority of The City of New Castle and The City of New Castle, No. 160 of 1978, Misc. Dkt.

COUNSEL

Daniel I. Herman, Geer and Herman, for appellant.

Jonathan Solomon, with him, Robert E. Jamison, for appellees.

Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Smith. This decision was reached prior to the resignation of Judge MacPhail.

Author: Smith

[ 120 Pa. Commw. Page 201]

Appellant Redevelopment Authority of the City of New Castle (Authority) appeals from the October 8, 1986 decision and order of the Court of Common Pleas of Lawrence County in which the Court dismissed the Authority's preliminary objections to the petition for appointment of viewers and determined that a de facto taking had occurred of property belonging to Appellees, Robert W. McGaffic, Executor of the Estate of Eleanor L. McGaffic, deceased; Robert W. McGaffic, in his own right; George G. Love; and John W. Miller, individually and as executor of the Estate of Anita L. Miller, deceased. The Court appointed a Board of Viewers to establish just compensation due Appellees.

The Authority raises three issues for review by this Court: Whether the trial court erred in finding that the Authority had effectuated a de facto taking of the Centennial Building (Building) owned by Appellees; whether the trial court erred in failing to strike testimony of an expert witness for Appellees whose testimony was based in part on information not relied upon in the real estate profession; and whether the trial court erred in admitting speculative testimony of the expert witness.

Appellees own the four-story Building located in downtown New Castle, Lawrence County. The Building was erected in 1925 and has been maintained since then as commercial rental property. The trial court found that on July 1, 1966, the Authority applied to the federal government for urban renewal grant funds for a project which included acquisition of the Building. On November 19, 1968, the Authority recorded with the Recorder of Deeds its plan for development of the downtown area in New Castle, known as the Central Area Urban Renewal Project. The Authority conducted appraisals of the Building and other properties to be acquired and thereafter entered into a contract on April

[ 120 Pa. Commw. Page 20212]

, 1973 for sale of various properties with a private developer, New Castle Central Renewal Associates. The contract included a right of first refusal for the subject property. The Authority contended that problems developed from the beginning of the project and that in September 1973, the developer's right to the Building was removed from the contract. On September 14, 1978, the Building was formally removed from the development plan. N.T., p. 68, October 30, 1985 Hearing; N.T., p. 27, November 5, 1985 Hearing.

On October 31, 1978, Appellees filed a petition for appointment of viewers*fn1 to determine damages in a de facto taking of their property pursuant to Section 502(e) of the Eminent Domain Code of 1964 (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-502(e). On November 20, 1978, the Authority filed preliminary objections which is the exclusive method under the Code of raising legal and factual objections to a petition for appointment of viewers which allege a de facto taking. Holmes Protection of Pittsburgh, Inc. v. Port Authority of Allegheny County, 90 Pa. Commonwealth Ct. 342, 495 A.2d 630 (1985). The Court may not dismiss preliminary objections under such circumstances without first conducting an evidentiary hearing to determine whether a de facto taking took place. Id.; Beluschok v. Peoples Natural Gas Co., 79 Pa. Commonwealth Ct. 540, 470 A.2d 196 (1984). After seventeen evidentiary hearings, the trial court dismissed

[ 120 Pa. Commw. Page 203]

    the preliminary objections, finding that a de facto taking had occurred on April 12, 1973, the date of contract between the Authority and the private developer, and that a board of viewers should be appointed to determine the amount of ...


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