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In Re: Condemnation By the Redevelopment Authority of the City of

October 17, 2011

IN RE: CONDEMNATION BY THE REDEVELOPMENT AUTHORITY OF THE CITY OF ALLENTOWN, CONDEMNOR, OF 332-348 NORTH FRONT STREET, ALLENTOWN, LEHIGH COUNTY, PENNSYLVANIA, RIBBON WORKS PARTNER, LLC, CONDEMNEE APPEAL OF: REDEVELOPMENT AUTHORITY OF THE CITY OF ALLENTOWN


The opinion of the court was delivered by: Johnny J. Butler, Judge

Argued: September 13, 2011

BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE JOHNNY J. BUTLER, Judge HONORABLE KEITH B. QUIGLEY, Senior Judge

OPINION BY

JUDGE BUTLER

The Redevelopment Authority of the City of Allentown (RACA) appeals from the January 13, 2011 order of the Court of Common Pleas of Lehigh County (trial court) sustaining Preliminary Objections filed by Ribbon Works Partners, LLC (Condemnee), and striking the Amended Declaration of Taking. There are four issues before the Court: (1) whether the trial court erred in determining that Section 302(e) of the Eminent Domain Code (Code), 26 Pa.C.S. § 302(e), is analogous to a statute of limitations; (2) whether the trial court erred in not considering In re Condemnation Proceeding by Lower Macungie Township, 74 Pa. D&C 4th 112 (2005) (Lower Macungie Township); (3) whether the trial court erred in finding that the notice of the determination of blight and of appeal rights was not properly served upon Condemnee; and (4) whether the findings of fact are supported by the record. For the reasons set forth below, we affirm the trial court's order.

Condemnee purchased property located at 332-348 N. Front Street, in Allentown (the property), in October of 2003 for $440,000.00. On March 8, 2004, the property was determined to be blighted. Condemnee did not appeal this determination. On June 14, 2005, the RACA adopted a resolution authorizing the executive director to acquire the property through eminent domain. On June 15, 2005, the Allentown City Council adopted a resolution authorizing RACA to acquire the property through eminent domain, if necessary.

On September 15, 2008, the RACA filed a Declaration of Taking (Declaration). Condemnee filed Preliminary Objections alleging that the Declaration was not filed within the required year from the date of authorization. On December 3, 2008, the RACA adopted another resolution continuing the authorization of the taking of the property. On December 11, 2008, the RACA filed an Amended Declaration of Taking (Amended Declaration). Condemnee filed Preliminary Objections to the Amended Declaration. On January 13, 2011, the trial court sustained the Preliminary Objections, and both the Declaration and Amended Declaration were stricken. RACA appealed to this Court.*fn1

RACA argues that the trial court erred in determining that Section 302(e) of the Code is analogous to a statute of limitations. Specifically, RACA contends that amended declarations may be filed as of course without instituting new court actions in order to cure technical defects. RACA further contends that Section 205(e) of the Code, 26 Pa.C.S. § 205(e), should be the applicable statute of limitations, not Section 302(e) of the Code. We disagree.

Section 205(c)(2) of the Code, 26 Pa.C.S. § 205(c)(2), states: "A condemnor may use eminent domain to acquire any unit of property within a blighted area so declared pursuant to this section[;]" Section 205(e) of the Code states: "The declaration of a blighted area shall expire after 20 years[;]" and Section 302(e) of the Code states: "The condemnor shall file within one year of the action authorizing the declaration of taking, a declaration of taking covering all properties included in the authorization not otherwise acquired by the condemnor within this time."

Here, RACA had the property determined a blight in 2004. It had 20 years to commence its eminent domain procedures. Thus, RACA timely passed the resolution authorizing the condemnation. However, it only had one year from the date of that resolution to file its Declaration. Clearly, it did not do so. There is nothing in either section stated above giving RACA authority to extend the one year time period by adopting another resolution "continuing" the authority to condemn. Accordingly, the trial court did not err in sustaining the preliminary objections on the basis of the untimeliness of the filing of the Declaration.

RACA next argues that the trial court erred in not considering Lower Macungie Township. Specifically, RACA contends that stare decisis demands respect for prior decisions of the court. In Lower Macungie Township, a judge on the same court as the trial court found that there were no obstacles to permitting an amendment to a declaration of taking to incorporate a newly enacted statute. Thus, RACA contends that Lower Macungie Township would require the trial court here to permit RACA to amend its declaration to include the recent resolution continuing RACA's authority to condemn. We disagree.

"Stare decisis is not an iron mold into which every utterance by a Court-regardless of circumstances, parties, economic barometer and sociological climate-must be poured, and, where, like wet concrete, it must acquire an unyielding rigidity which nothing later can change." Ins. Fed'n of Pa., Inc. v. Koken, 801 A.2d 622, 630 (Pa. Cmwlth. 2002) (Pellegrini, J., concurring) (quoting Flagiello v. Pa. Hosp., 417 Pa. 486, 511, 208 A.2d 193, 205 (1965)), rev'd on other grounds, 585 Pa. 630, 889

A.2d 550 (2005). In addition, Lower Macungie Township did not involve the same issue, i.e., whether the one year requirement can be extended by resolution. Moreover, here, the resolution was passed without conforming to requisite procedures and in Lower Macungie Township, the trial court specifically gave the condemnor 90 days to fulfill his notice, advertising, and meeting requirements needed to pass the resolution. Accordingly, the trial court did not abuse its discretion by not permitting RACA to amend its Declaration to include the recent resolution continuing RACA's authority to condemn.

RACA next argues that the trial court erred in finding that the notice of the determination of blight and of appeal rights was not properly served upon Condemnee. RACA specifically contends that Exhibit B to the Amended Declaration i.e., the actual notice, certified mail, return receipt requested, clearly demonstrates proper service of notice as required by Section 12.1(e)(2) of the Urban Redevelopment Law (URL), 35 P.S. § 1712.1(e)(2).*fn2 Further, RACA contends that Section 1741.11 of the Allentown City Codified Ordinances provides that ...


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