Opinion
No. 2402 C.D. 2010
04-24-2012
In Re: A Condemnation Proceeding in Rem by the Redevelopment Authority of the City of Philadelphia County for the Purpose of Redevelopment of North Philadelphia Redevelopment Area Model Cities Urban Renewal Area Condemnation No. 36 Including Certain Land Improvements and Properties Appeal of: Ali Moracco Ali
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
This case was assigned to the opinion writer before January 7, 2012, when Judge Pellegrini became President Judge.
Ali Morocco Ali (Ali) appeals from the October 4, 2010, order of the Court of Common Pleas of Philadelphia County (trial court) denying his second amended motion for the appointment of a board of viewers. We affirm.
On April 23, 2009, the Redevelopment Authority of the City of Philadelphia (the Authority), in accordance with section 302 of the Eminent Domain Code (Code), 26 Pa. C.S. §302, filed a declaration of taking seeking to condemn certain real property located at 1501-1515 Poplar Street in the city of Philadelphia. (R.R. at 25-41.) Section 302 of the Code states that condemnation shall be effected only by the filing in court of a declaration of taking and that title shall pass to the condemnor on the date of filing. The Authority identified the city of Philadelphia as the record owner of 1501, 1503, 1505, 1507, 1508, 1510, 1512, and 1514 Poplar Street, Laura and Thomas Knecht as the record owners of 1509 Poplar Street, and MS Franklin, LLC, as the record owner of 1511, 1513, and 1515 Poplar Street. Id. The Authority provided each of these owners with written notice of the declaration of taking within 30 days, as required by section 305(a) of the Code, 26 Pa. C.S. §305(a) (condemnor required to provide written notice to the condemnee, or a mortgagee or lienholder of record, within 30 days of the filing of the declaration).
We note that Ali's reproduced record fails to include the lower case "a" following the page number as required by Pa. R.A.P. 2173.
On July 6, 2009, the Authority filed a petition for a writ of possession under section 307 of the Code, 26 Pa. C.S. §307, alleging that the period of time for the record owners to file preliminary objections to its declaration of taking had expired and that written offers to pay estimated just compensation were sent to these owners. (R.R. at 3, 108-09.) Indeed, sections 306(a) and (b) of the Code provide that preliminary objections are the exclusive method of challenging the declaration, that the same must be filed within 30 days after service of notice of the condemnation, and that failure to include an issue in the preliminary objections constitutes a waiver. 26 Pa. C.S. §306(a), (b). The Authority noted in its petition for a writ of possession that the properties were currently occupied by Ali and his business, The Wrath of Allah Recycling Mecca Medina, Inc. (WARMM). (R.R. at 109.)
Section 307(a)(1)(i) of the Code provides that, after the expiration of the time for filing preliminary objections, the condemnor shall be entitled to possession or right of entry upon payment of, or a written offer to pay the condemnee, estimated just compensation. 26 Pa. C.S. §307(a)(1)(i). This section also addresses the condemnor's ability to file a writ of possession if the condemnee refuses to deliver possession or permit entry. Section 307(a)(1)(iii) of the Code, 26 Pa. C.S. §307(a)(1)(iii).
A copy of this petition was served on Ali, Ali's counsel, and WARMM. (S.R.R. at 16b-17b.)
By order dated July 28, 2009, the trial court directed the Authority to file a praecipe for writ of possession, the Prothonotary to issue the writ, and the Sheriff of Philadelphia County to serve the writ and deliver possession of the properties to the Authority. (R.R. at 70.) The Authority filed a praecipe on August 27, 2009, the Prothonotary issued the writ that same day, and the Sheriff served the writ on October 1, 2009. (S.R.R. at 18b, 23b.) On October 8, 2009, Ali, on behalf of WARMM, filed a motion to strike the writ of possession, alleging that WARMM has conducted a recycling business at the property on a continuous and uninterrupted basis since 1984, that Ali has paid real estate taxes on a portion of the properties for several years, and that Ali and WARMM therefore claim ownership of said properties. (S.R.R. at 22b-25b.) Nevertheless, the trial court denied Ali's motion by order dated October 13, 2009. (R.R. at 87.)
Subsequently, on November 25, 2009, Ali filed a motion to intervene in the Authority's condemnation action, alleging that he was the owner of 1501-1515 Poplar Street by virtue of adverse possession. (S.R.R. at 29b-33b.) Specifically, Ali alleged that WARMM has occupied and operated its business from these properties for a period in excess of 21 years, that said occupancy has been open, notorious, legal, and with a claim of right, and that he has maintained, cleaned, and secured the properties. Id. The trial court denied the motion by order dated March 11, 2010, and Ali did not appeal. (R.R. at 89.)
Instead, on May 10, 2010, Ali filed a motion for the appointment of a board of viewers. (R.R. at 6.) Ali subsequently amended this motion twice, the latest of which, his second amended motion for the appointment of a board of viewers, is currently at issue. (R.R. at 13-16.) In this motion, Ali reiterated his previous allegations that he had acquired ownership of the properties by virtue of adverse possession and had previously paid taxes on the properties. Id. Ali also alleged that WARMM had previously received a business privilege license from the city to conduct its business at the properties. Id. Further, Ali alleged that the Authority forcibly displaced WARMM from the properties and confiscated its moving stock, thereby causing substantial damage to the business and the property. Id.
Ali attached to this motion a copy of a business privilege license issued to WARMM with an address of "1515 W Poplar St," as well as copies of letters and a check sent by Ali's counsel to a representative of the City's delinquent tax unit regarding tax payments for the property at 1511 Poplar Street. (R.R. at 43-50.)
The Authority filed an answer with new matter, contending that WARMM was not in lawful occupancy of the properties, that the Authority took lawful possession of the properties on October 13, 2009, and that it did not damage any personal property. (R.R. at 53-57.) In its new matter, the Authority averred that the City, not Ali or WARMM, was the record owner of the subject properties. Id. The Authority contended that Ali's adverse possession claim was barred by the law of the case since the trial court had previously authorized the writ of possession and denied Ali's motion to strike, and Ali did not appeal. Id.
Additionally, the Authority contended that Ali's claim of adverse possession cannot lie against the City because the properties had been devoted to public use and because several of the properties had been acquired by the City following a tax sale. Id. Further, the Authority contended that Ali himself had defeated any adverse possession claim, i.e., Ali failed to establish the requisite element of continuous, hostile possession, because of his numerous attempts to obtain title from the City before the expiration of the 21-year period. Id. In this regard, the Authority indicated that Ali had attempted over the course of several years to obtain title to 1501-1507 Poplar Street from the City through the Vacant Property Review Committee. Id.
The trial court held a hearing with respect to Ali's second amended motion on September 22, 2010. (R.R. at 122.) At this hearing, Ali alleged that, because an issue of fact has been raised concerning whether he has title to the properties by virtue of adverse possession, the trial court was required to hold an evidentiary hearing in accordance with section 504(d)(5) of the Code, 26 Pa. C.S. §504(d)(5). Id. Section 504(d)(5) addresses the situation where preliminary objections have been filed to a petition for the appointment of viewers and provides that, where such preliminary objections raise an issue of fact, the court "shall conduct an evidentiary hearing or order that evidence be taken by deposition or otherwise...." By order dated October 4, 2010, the trial court denied Ali's motion. (R.R. at 119.) Ali filed a notice of appeal with the trial court, which issued an opinion in support of its order. (R.R. at 120-24.)
In this opinion, the trial court stated that it had properly denied Ali's motion for the appointment of a board of viewers on the basis of the law of the case, noting the unappealed denials of Ali's motion to strike the writ of possession and motion to intervene in the condemnation proceedings. Id. Additionally, the trial court concluded that the filing of the motion for the appointment of a board of viewers in an effort to adjudicate the issue of title by adverse possession was procedurally improper. Id. The trial court explained that Ali never filed preliminary objections to the declaration of taking as required by section 306 of the Code, 26 Pa. C.S. §306, and that Ali must first seek to establish title in another proceeding, such as a quiet title action, before he could be considered a condemnee.
The trial court noted that Ali had filed a quiet title action in 2008, but that action was non-prossed on October 9, 2008, for failure to attend two consecutive case management conferences and a rule to show cause hearing. A copy of Ali's 2008 complaint to quiet title and the trial court's order declaring the action to be non-prossed can be found in the Authority's supplemental reproduced record. (S.R.R. at 1b-5b.)
As this appeal was pending, Ali reached a settlement with the Knechts and MS Franklin, LLC, regarding the properties at 1509, 1511, 1513, and 1515 Poplar Street, thereby leaving only the eight City-owned properties at issue.
On appeal to this Court, Ali argues that the trial court erred in denying his motion for the appointment of a board of viewers on the grounds that he was not a proper condemnee under the Code. We disagree.
In eminent domain cases, our scope of review is limited to determining whether the trial court has abused its discretion or has committed an error of law. York City Redevelopment Authority v. Ohio Blenders, Inc., 956 A.2d 1052 (Pa. Cmwlth. 2008), appeal denied, 600 Pa. 767, 967 A.2d 962 (2009).
Section 502 of the Code states that a "condemnor, condemnee or displaced person may file a petition requesting the appointment of viewers" where the parties cannot agree on the amount of just compensation for the condemned property. 26 Pa. C.S. §502. Here, Ali argues that he was a proper condemnee by virtue of his adverse possession of the properties. However, Ali concedes that the issue of whether a claim to title by adverse possession is sufficient to confer standing in an eminent domain proceeding has yet to be addressed in this Commonwealth. We decline to reach such a holding here.
Instead, we agree with the Authority that a declaratory judgment action is the proper avenue to assert a claim for title under these circumstances. This issue was addressed by our Supreme Court in Stevenson v. Stein, 412 Pa. 478, 195 A.2d 268 (1963). In Stevenson, the Redevelopment Authority of Philadelphia condemned 64 acres of land in the Eastwick section of Philadelphia on November 30, 1958. The record owner of the land at that time was Elias Stein. However, on June 4, 1959, Harold Stevenson filed a petition for declaratory judgment alleging that he was the legal owner of the land by virtue of having held continuous adverse possession thereof for a period of more than 21 years. The trial court ruled against Stevenson and he appealed.
On appeal, our Supreme Court first addressed the question of whether a declaratory judgment action was available in a condemnation action. The court characterized the case as unusual and concluded that no other appropriate remedy was available. The court then noted that a perfect fee simple title had already vested in the Redevelopment Authority as result of the condemnation, and, thus, an action to quiet title was not an appropriate remedy. The court observed that a declaratory judgment action could not affect the title obtained by the Redevelopment Authority, but could determine who was entitled to damages. The court noted the absence of any other conventional remedy which presented a vehicle for resolving that dispute. Accordingly, the court in Stevenson concluded that a declaratory judgment action was the only appropriate remedy available to a party who, like Ali, claimed an ownership interest by adverse possession against a record owner following a condemnation. Because the facts here are substantially similar to Stevenson, we conclude that Ali's motion for the appointment of a board of viewers was not the proper method to establish title.
We note that the Commonwealth Court, established in 1970, was not in existence at the time of the Stevenson decision. --------
Moreover, we agree with the Authority that Ali was never a party to the condemnation action. As noted above, Ali filed a motion with the trial court to intervene in the Authority's condemnation action on November 25, 2009, but said motion was denied by order of the trial court dated March 11, 2010, and Ali did not appeal. Thus, Ali was not a party to the condemnation action and he was precluded from any further participation in the matter, including the filing of a motion for the appointment of a board of viewers. See In re Barnes Foundation, 582 Pa. 370, 871 A.2d 792 (2005) (party denied intervention has 30 days to appeal and the failure to appeal precludes that party from any further participation in the appellate process).
Having so concluded, we reject Ali's argument that the trial court erred in dismissing his second amended motion to appoint a board of viewers without conducting a hearing in accordance with section 504 of the Code, 26 Pa. C.S. §504.
Accordingly, the order of the trial court is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 24th day of April, 2012, the order of the trial court, dated October 4, 2010, is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge