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07/09/97 NORMAN LINEFSKY v. REDEVELOPMENT AUTHORITY

July 9, 1997

NORMAN LINEFSKY, EXECUTOR OF THE ESTATE OF SAMUEL LINEFSKY, DECEASED, TILLIE ALLANOFF, SELMA LINEFSKY AND ELAINE KATCHMAN, CO-PARTNERS, APPELLANTS
v.
THE REDEVELOPMENT AUTHORITY OF THE CITY OF PHILADELPHIA



Appealed From No. 5402 August Term, 1989. Common Pleas Court of the County of Philadelphia. Judge MAIER.

Before: Honorable Doris A. Smith, Judge, Honorable James R. Kelley, Judge, Honorable Silvestri Silvestri, Senior Judge. Opinion BY Senior Judge Silvestri.

The opinion of the court was delivered by: Silvestri

OPINION BY SENIOR JUDGE SILVESTRI

Filed: July 9, 1997

Norman Linefsky, Executor of the Estate of Samuel Linefsky, Tillie Allanoff, Selma Linefsky and Elaine Katchman (Appellants) appeal from an order of the Court of Common Pleas of Philadelphia County (trial court), dated September 24, 1996, granting the Petition To Enforce Settlement of the Redevelopment Authority of the City of Philadelphia (Authority).

On May 11, 1988, the Authority filed a declaration of taking for, inter alia, property located at 1237-1239 Market Street, which was known as the Dewey Building. *fn1 At the time of the taking, the property was owned pursuant to a joint venture agreement (joint venture) in which the interests of the joint venturers was as follows: Samuel Linefsky (55%); Samuel Allanoff (25%); Selma Linefsky and Elaine Katchman (20%). *fn2 The joint venture provided, in relevant part, as follows:

9. The management and conduct of the joint venture shall be vested in all of the parties. All decisions affecting the policy of this joint venture, the management of the premises including the drawing accounts and compensation of the agent and other employees of the joint venture, the discharge of employees and all matters of whatsoever kind or nature relating to the ownership of the premises of the management and operation thereof, shall be made jointly by all the parties hereto.

10. In the event of a disagreement among the managing parties hereto, a decision by a majority of the Joint Venturers shall be binding upon the parties hereto.

(R.R. 224a.)

On July 21, 1988, the Authority paid the joint venturers 2.5 million dollars, the value of the property as determined by the Authority's appraiser. A hearing was held before the Board of View (Board) on June 15, 1989. The Board filed a report and award on July 18, 1989, in favor of the joint venturers *fn3 in the amount of $2.9 million. *fn4

During the foregoing proceedings, the joint venturers were being represented by Attorney Charles Basch (Basch). Following the Board's award of 2.9 million dollars, Basch, with the permission of the joint venturers, engaged in settlement Discussions with the Authority, the result of which produced a settlement offer whereby the Authority agreed to pay, in addition to those monies already paid, $400,000.00 plus $34,937.00 in interest and an additional $20,107.60 for rental reimbursement. By letter of July 26, 1989, Basch informed the Authority that the joint venturers had accepted the settlement offer and that no appeal would be filed by either party. (R.R. 28a.) A date to conclude the settlement was scheduled for August 29, 1989. By letter dated August 24, 1989, Basch was informed by Samuel Linefsky that his services were being terminated and that he was being replaced by Attorney Lewis Kates (Kates). (R.R. 466a.)

On August 30, 1989, an appeal from the award of the Board was filed by Kates on behalf of the property owners. In response thereto, the Authority filed a motion to quash the appeal because it was untimely. The trial court granted the Authority's motion to quash by order dated August 13, 1992 and the Appellants filed an appeal therefrom to this Court. By opinion and order dated October 21, 1993, this Court determined that the appeal was timely and remanded to the trial court "to proceed on the merits of the Condemnees' appeal." *fn5

Following the remand to the trial court, the Authority filed a Petition To Enforce Settlement in which it averred that both parties had agreed to accept the award of the Board and further that no appeal would be filed by either party. (R.R. 14a-21a.) On November 3, 1994, the Appellants, by Kates, filed an answer denying there was a settlement. By opinion and order dated January 13, 1995, the trial court, without conducting a hearing and without briefs or oral argument, granted the Authority's Petition To Enforce Settlement, which was appealed here at Norman Linefsky, et al v. Redevelopment Authority of the City of Philadelphia ( No. 349 C.D. 1995, filed December 1, 1995), slip op. at 6-7.

Following argument and consideration of the briefs, we held

our review of the record reveals that material issues of fact are raised by the Authority's Enforcement Petition and Condemnee's answer thereto. The trial court was required to resolve the issues raised either by an in court evidentiary hearing or by resort to Rule 209. The trial court's grant of the relief sought by the Authority without conducting a hearing or proceeding in accordance with Rule 209 constituted error.

Accordingly, we reverse the order of the trial court and remand with direction to conduct an evidentiary hearing, either in court or pursuant to Rule 209[ *fn6 ], then determine whether a ...


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