Opinion
Argued September 28, 1978
November 27, 1978.
Eminent domain — Displaced person — Eminent Domain Code, Act 1964, June 22, P.L. 84 — Preliminary objections — Hearing — Displacement damages — Lawful occupancy of property — Demand for hearing — Waiver of hearing.
1. The requirement that preliminary objections to a petition for the appointment of viewers cannot be dismissed without first holding an evidentiary hearing is applicable to objections filed to a petition filed under the Eminent Domain Code, Act 1964, June 22, P.L. 84, for displacement damages by a person alleged to have been displaced by a condemning authority as well as to objections filed to a petition asserting that a de facto taking has been effected. [575-6]
2. Preliminary objections filed by a condemning authority to a petition for displacement damages, which challenge allegations in the petition that the petitioner has a lawful right to occupy such premises and which assert that the petitioner is a squatter without lawful occupancy rights, put at issue a matter the resolution of which requires that an evidentiary hearing be conducted. [576-7]
3. The failure of a party to demand formally that the hearing be held, which is required to be held on preliminary objections to a petition for the appointment of viewers, does not effect a waiver of the right to such hearing. [577]
Argued September 28, 1978, before Judges CRUMLISH, JR., DiSALLE and MacPHAIL, sitting as a panel of three.
Appeal, No. 1896 C.D. 1976, from the Order of the Court of Common Pleas of Philadelphia County in case of Raymond Martorano v. City of Philadelphia, No. 1576 July Term, 1976.
Petition in the Court of Common Pleas of Philadelphia County for appointment of viewers. Respondent filed preliminary objections. Preliminary objections dismissed. DIBONA, JR., J. Respondent appealed to the Commonwealth Court of Pennsylvania. Held: Reversed and remanded.
Barbara R. Axelrod, Assistant City Solicitor, with her Sheldon L. Albert, City Solicitor, and James M. Penny, Jr., Deputy City Solicitor, for appellant.
Lewis Kates, with him Kates Livesey, for appellee.
This is an appeal by the City of Philadelphia (City) from an order of the Court of Common Pleas of Philadelphia County dismissing its Preliminary Objections. We reverse.
On July 22, 1974, the City acquired by condemnation a portion of real estate in Philadelphia, Pennsylvania, known as Pier 27 North. On July 14, 1976, Raymond Martorano (Appellee), pursuant to Section 502(e) of the Eminent Domain Code (Code), Act of June 22, 1964, Spec. Sess., P.L. 84, as amended, 26 P. S. § 1-502 (e), filed a petition for the appointment of viewers, alleging that he was the former lawful occupant of a lunchwagon that had been affixed to said pier, and that by acquiring the pier, the City had caused him to become a "displaced person" within the meaning of Section 201(8) of the Code, 26 P. S. § 1-201 (8). The City filed preliminary objections denying that Appellee had lawfully occupied the pier and averring that he was a squatter with absolutely no legal right to occupy the premises. Therefore, according to the City, Appellee was not a "displaced person" under the Code and could assert no claim for damages. By an order dated October 19, 1976, the court below, without conducting an evidentiary hearing, concluded that a compensable displacement had occurred and dismissed the City's preliminary objections.
This Court has consistently held that where a party has filed preliminary objections to a petition for the appointment of viewers, the trial court may not dismiss those objections without first conducting an evidentiary hearing to determine whether there has been a de facto taking or other compensable injury. Greger v. Canton Township, 25 Pa. Commw. 279, 360 A.2d 792 (1976); Reilly v. Department of Environmental Resources, 21 Pa. Commw. 611, 346 A.2d 918 (1975); Petition of Ramsey, 20 Pa. Commw. 2077, 342 A.2d 124 (1975); Jacobs v. Nether Providence Township, 6 Pa. Commw. 594, 297 A.2d 550 (1972).
Of course, "[i]f the trial court concludes as a matter of law that the averments of a property owner's petition taken as true, are insufficient to state a cause of action of a de facto 'taking' or compensable injury, it should . . . sustain the preliminary objections and dismiss the petition or possibly allow the petitioner to enlarge his pleading." 6 Pa. Commw. at 597-98, 297 A.2d at 552.
Appellee argues that the cases cited deal solely with de facto condemnations, and do not apply where, as here, the proceedings involve displacement damages only. We disagree. In Jacobs, supra, President Judge BOWMAN repeatedly refers to petitions alleging a de facto taking or compensable injury. We remind Appellee that the Section under which he seeks to have viewers appointed, 502(e), allows the condemnee to petition for such appointment where "there has been a compensable injury suffered." Displacement damages clearly fall in the category of "compensable injury." Obviously, the distinction Appellee would have us draw lacks legal significance.
Appellee next argues that the City's preliminary objections raise no issues of fact upon which an evidentiary hearing need be held. He contends that given the City's admission that Agnes Borner was the former primary tenant, and given Ms. Borner's statement that she lawfully sublet the premises to Appellee, the City's "bald assertion" that Appellee occupied the premises illegally places nothing in dispute because the City did not and could not aver any facts to support such an allegation. In other words, the City's admission, when coupled with Ms. Borner's statement that Appellee had obtained her "properly given permission" to occupy the pier, conclusively establishes the legality of his occupancy. We disagree. Although the City's preliminary objections are hardly the model of specificity and preciseness, they do place the lawfulness of Appellee's occupancy at issue, and the lower court erred in characterizing the allegations as merely "generalized conclusions of law and vague denials."
Appellee argues lastly that because the City, after filing its preliminary objections, failed to affirmatively demand an evidentiary hearing, it has somehow waived its right to such a hearing. This Court, in City of Philadelphia v. Airportels, Inc., 14 Pa. Commw. 617, 322 A.2d 727 (1974), declared preliminary objections to be the exclusive method of testing the legal and factual sufficiency of a petition for the appointment of viewers. And in Jacobs, supra, and its progeny, we outlined the circumstances in which it would be inappropriate for a trial court to dismiss preliminary objections without first conducting an evidentiary hearing. We refuse to read into these cases the requirement that a party otherwise entitled to an evidentiary hearing must make formal demand therefor, especially when the holding of such hearings is essential to our eventual review of these matters.
We reverse and remand for proceedings consistent with this opinion.
ORDER
AND NOW, this 27th day of November, 1978, the order of the Court of Common Pleas of Philadelphia County, dated October 19, 1976, is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.