Friedman v. Redevelopment Authority

24 Pa. D. & C.3d 377, 1982 Pa. Dist. & Cnty. Dec. LEXIS 302
CourtPennsylvania Court of Common Pleas, Chester County
DecidedApril 7, 1982
Docketno. 12 Jury of View, 1979
StatusPublished

This text of 24 Pa. D. & C.3d 377 (Friedman v. Redevelopment Authority) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Chester County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Friedman v. Redevelopment Authority, 24 Pa. D. & C.3d 377, 1982 Pa. Dist. & Cnty. Dec. LEXIS 302 (Pa. Super. Ct. 1982).

Opinion

SUGERMAN, J.,

Plaintiffs have appealed to the Commonwealth Court our order overruling their preliminary objections to an amended declaration of taking filed by the Redevelopment Authority of the County of Chester (Authority). Two such preliminary objections were filed; the first attacked the action by the Planning Commission of Chester County certifying an area in the Borough of West Chester as blighted, pursuant to the Urban Redevelopment Law,1 and the second attacked the condemnation of plaintiffs’ land and building, situated within the blighted area, as constituting a condemnation of “private property for solely private purposes and not for public purposes . . .” . Plaintiffs’ preliminary objections at 2.

Upon our receiving notice of plaintiffs’ appeal, we directed their counsel to serve upon us a statement of matters complained of on appeal, pursuant to Pa. R.A.P. 1925(b). Counsel has served such statement upon us, raising only the overruling of the second of the two preliminary objections as the single issue on appeal, in the following language:

“The Learned Court erred in overruling plaintiffs’ second preliminary objection to the Declaration of Taking in fading to find that their property was condemned for a private use, rather than for a public use.”

As plaintiffs have failed to include our overruling of the first preliminary obj ection in their Statement, we consider the issue as abandoned: Com. v. Marcocelli, 271 Pa. Superior Ct. 411, 417, 413 A. 2d [379]*379732, 735 (1979), and we thus address the single issue preserved.

From the record, including the transcript of the hearing held upon plaintiffs’ preliminary obj ections and the numerous documentary exhibits received in evidence thereat, we observe that on May 16, 1972, the Planning Commission of Chester County, in order to facilitate urban renewal of the central business district of the Borough of West Chester, certified an area in the Borough as blighted, and suitable for redevelopment, pursuant to the Urban Redevelopment Law. The Authority thereafter prepared a comprehensive redevelopment proposal for that part of the area certified as blighted, designated the Central Business Urban Redevelopment Area. Ultimately, a part of that redevelopment was designated as the West Chester Gay Street Mall Urban Renewal Project.

On the date of the certification of the redevelopment area as blighted, plaintiffs owned a tract of land within the redevelopment area, at the northwest corner of Gay and Walnut Streets in the Borough. Three buildings were erected upon plaintiffs’ tract, including a vac ant motion picture the atre, a garage, and a drugstore with an annexed parking lot.2

On October 25, 1977, the Authority filed a declaration of taking condemning that part of plaintiffs’ premises upon which were erected the theatre and the garage, and on December 29, 1978, plaintiffs, as condemnees, upon payment to them by the Authority of just compensation, released all claims arising from the condemnation.

Then, on June 25, 1979, the Authority filed the [380]*380instant declaration of taking, condemning the remainder of Plaintiffs’ tract including the drugstore and parking lot. In Paragraph 4 of the declaration of taking, the Authority asserted that the purpose of the taking was to provide an access way for an existing Borough parking facility following demolition of the drugstore.

On November 7, 1979, the Authority filed an amended declaration of taking, this time asserting that the purpose of the taking was threefold: to provide off-street loading, to again provide access to the existing Borough parking facility, and “for new and expanded commercial facilities including an expansion of the present” drugstore: Amended Declaration of Taking, §4 at 2. It is to this amended declaration that plaintiffs’ preliminary objection is directed.

At all times at least since April, 1973, the drugstore on plaintiffs’ tract has been operated by Ronald and Stanford Zukin (Zukins), trading as Thatcher’s Drug Store. The Zukins are the tenants in the premises pursuant to alease agreement entered into between plaintiffs, as lessors, and the Zukins in March, 1973. The original term of the lease expires in May, 1983.

On February 23, 1979, following the filing of the amended declaration of taking, the Authority and the Borough entered into a “Redevelopment Agreement” with the Zukins, naming the Zukins as the redeveloper (Exhibit D-10), whereby the Authority agreed to convey the entire parcel to the Zukins, including the theatre, garage, drugstore and parking lot for a sum essentially equivalent to the just compensation paid and to be paid by the Authority to plaintiffs, together with certain incidental costs. The Zukins, in turn, as redevelopers, agreed to demolish the existing structures upon the tract and to construct a new commercial facility thereon.

[381]*381Thus, in essence, the Authority proposes to condemn plaintiffs’ tract and convey it to plaintiffs tenants so that the tenants can erect and operate a modern pharmacy in place of the facility the tenants presently operate. This, plaintiffs contend, constitutes a condemnation for a private purpose and is thus contrary to the law.

We begin with the principle in mind that while as a general rule, private property cannot be taken by eminent domain for the sole purpose of devoting it to the private use of another, yet if it is taken for a proper public purpose, it may be permitted to revert to private ownership when the public purpose is discharged: Goodwill Industries of Central Pennsylvania, Inc. Appeal, 30 Pa. Commonwealth Ct. 273, 278,373 A. 2d 774, 776(1977); Moyer Eminent Domain Appeal, 22 Pa. Commonwealth Ct. 487, 490, 349 A. 2d 781, 783-84 (1976). Section 2 of the Urban Redevelopment Law, 35 P.S. §1702, defines the redevelopment of blighted areas for commercial purposes as a proper public purpose for which public funds may be expended and private property acquired by the exercise of the power of eminent domain.

The record of the hearing reveals not only that the area in which the theatre and drugstore are located is blighted, and this plaintiffs now admit, but that the buildings themselves are in an advanced state of deterioration. Clearly, the redevelopment of the blighted commercial district in which plaintiffs’ premises are located is a proper public purpose for which public funds may be expended and private property acquired by the exercise of the power of eminent domain under the Urban Redevelopment Law, and our examination of the record reveals no evidence that plaintiffs’ premises have been condemned for other than the public purpose of im[382]*382proving the blighted central business district of the Borough. Compare Goodwill Industries of Central Pennsylvania, Inc. Appeal, supra.

The Commonwealth Court was faced with a challenge quite similar to ours in In Re Franklin Town Project Philadelphia, 19 Pa. Commonwealth Ct. 272, 339 A. 2d 885 (1975). Inasmuch as we find Franklin Town and Belovsky v. Redevelopment Authority of Philadelphia, 357 Pa. 329, 54 A. 2d 277 (1954), the case upon which it relies, as dis-positive, we quote at length from the former:

It is hornbook in Pennsylvania law that an authority may not condemn lands for private purposes. Kramer Appeal, 438 Pa. 498, 266 A. 2d 96 (1970); Price v. Philadelphia Parking Authority, 422 Pa. 317, 221 A. 2d 138 (1966); Belovsky v.

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Related

Price v. Philadelphia Parking Authority
221 A.2d 138 (Supreme Court of Pennsylvania, 1966)
Commonwealth v. Marcocelli
413 A.2d 732 (Superior Court of Pennsylvania, 1979)
Kramer Appeal
266 A.2d 96 (Supreme Court of Pennsylvania, 1970)
OLIVER v. Clairton
98 A.2d 47 (Supreme Court of Pennsylvania, 1953)
Belovsky v. Redevelopment Authority
54 A.2d 277 (Supreme Court of Pennsylvania, 1947)
Bachner Et Ux. v. Pittsburgh
15 A.2d 363 (Supreme Court of Pennsylvania, 1940)
Schenck v. Pittsburgh
70 A.2d 612 (Supreme Court of Pennsylvania, 1950)
Simco Stores v. Redevelopment Authority
317 A.2d 610 (Supreme Court of Pennsylvania, 1974)
Golden Dawn Shops, Inc. v. Philadelphia Redevelopment Authority
282 A.2d 395 (Commonwealth Court of Pennsylvania, 1971)
Lazar v. Redevelopment Authority
339 A.2d 885 (Commonwealth Court of Pennsylvania, 1975)
In re Condemnation by the Redevelopment Authority
373 A.2d 774 (Commonwealth Court of Pennsylvania, 1977)
Condemnation of Premises 130 Court Street
388 A.2d 1108 (Commonwealth Court of Pennsylvania, 1978)

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Bluebook (online)
24 Pa. D. & C.3d 377, 1982 Pa. Dist. & Cnty. Dec. LEXIS 302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/friedman-v-redevelopment-authority-pactcomplcheste-1982.