Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of City of Philadelphia v. Sara B. Stein, No. 1904 July Term, 1983.
Joseph V. Restifo, for appellant.
Laureto A. Farinas, for appellee.
Judges Doyle and Smith (p.), and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish. Concurring Opinion by Judge Doyle.
[ 125 Pa. Commw. Page 226]
Sara Stein (appellant) appeals from an order and judgment of the Court of Common Pleas of Philadelphia County, sustaining the preliminary objections of the City of Philadelphia (City) and dismissing appellant's petition for the appointment of a Board of View. We reverse and remand.
It was stipulated between the parties that appellant owned a row house at 4412 Parrish Street in the City, and that in 1978, properties 4410 and 4414 were demolished by a contractor for the City because these properties were deemed by the City to be "imminently dangerous." Appellant's property was not so deemed by the City and, in fact, was occupied by tenants.
Appellant had filed an action in trespass and assumpsit which is still pending. Subsequently, appellant filed the action now being considered. In this action, she alleged that as a result of the demolition by the City of properties 4410 and 4414, her property at 4412 suffered substantial structural damage, including inter alia, the separation of the front wall from the side walls, the weakening of the foundation, and damage to the roof. Appellant alleges that these injuries to her property have substantially deprived her of the beneficial use of her property so that it is uninhabitable, and cannot be used as a rental property for any purpose. She alleges a "taking" of her property and seeks money damages.
Following argument on the City's preliminary objections in the nature of a demurrer, the trial judge sustained
[ 125 Pa. Commw. Page 227]
the demurrer. In the course of his opinion the trial judge stated, "a condemnee must show that the damages sustained by such condemnee are the 'unavoidable consequences' of an exercise of the power of eminent domain. . . . Here, the plaintiff's [appellant's] property was damaged when the City exercised its police power to protect the public and had the adjacent, 'imminently dangerous' buildings demolished. . . ."
Our scope of review is limited to determining whether there is competent evidence in the record to support the findings made and whether an error of law was committed. Deets v. Mountaintop Area Joint Sanitary Authority, 84 Pa. Commonwealth Ct. 300, 479 A.2d 49 (1984); Petition of Ramsey, 31 Pa. Commonwealth Ct. 182, 375 A.2d 886 (1977).
A de facto or inverse condemnation, as opposed to a de jure condemnation, involves a situation where a governmental agency, by its conduct, may or may not physically invade property. The owner contends that such conduct impinges on the beneficial use of his property, ...