Phila. Redevelopment Auth. of City of Phila. v. Atuahene
| Decision Date | 22 April 2020 |
| Docket Number | No. 332 C.D. 2019,332 C.D. 2019 |
| Citation | 229 A.3d 1002 |
| Parties | PHILADELPHIA REDEVELOPMENT AUTHORITY OF CITY OF PHILADELPHIA v. Steve ATUAHENE, Appellant |
| Court | Pennsylvania Commonwealth Court |
Steve Atuahene, Pro Se.
Ryan D. Harmon, Philadelphia, for Appellee.
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION BY JUDGE COVEY
Steve Atuahene (Atuahene) appeals, pro se, from the Philadelphia County Common Pleas Court's (trial court) January 24, 2019 order sustaining the Philadelphia Redevelopment Authority (Redevelopment Authority) of the City of Philadelphia's (City) preliminary objections (Redevelopment Authority's Preliminary Objections) to Atuahene's Preliminary Objections and Petition for Appointment of a Board of Viewers (Petition) and dismissing Atuahene's Preliminary Objections and Petition. Essentially, Atuahene presents three issues for this Court's review: (1) whether the trial court erred by dismissing Atuahene's Preliminary Objections and Petition as time-barred; (2) whether the Redevelopment Authority failed to join an indispensable party; (3) whether the trial court erred by denying Atuahene discovery and/or a hearing relative to the City's 2004-2005 purported de facto taking/inverse condemnation and dismissing the Petition.1 After review, we affirm in part, and vacate and remand in part.
In 2012, Atuahene owned the property located at 4653 North Warnock Street in Philadelphia (Property). On July 10, 2012, pursuant to the Urban Redevelopment Law (URL)2 and the Eminent Domain Code (Code),3 the Redevelopment Authority issued Resolution No. 19,338 (Resolution), to acquire title to land necessary to redevelop the area known as the Logan Redevelopment Area, Logan Urban Renewal Area, Condemnation 1C (Logan Redevelopment), which included the Property.4 See Reproduced Record (R.R.) at 13a-16a.
On December 14, 2012, pursuant to the Resolution, the Redevelopment Authority filed a Declaration of Taking (Declaration) in the trial court. See R.R. at 9a-21a. According to the Proof of Service of Notice to Condemnees, Mortgagees and Lienholders (Proof of Service), the Redevelopment Authority served notice of the Declaration on the owners of the condemned properties by certified mail, and by posting and advertising. See R.R. at 20a-21a. The Proof of Service reflects that the Redevelopment Authority served notice of the Declaration upon Atuahene by December 19, 2012 certified mailing. See R.R. at 21a, 49a. After two certified mailings to Atuahene's last known address were returned as undeliverable, the Redevelopment Authority advertised notice in the Philadelphia Daily News and the Legal Intelligencer on December 26, 2012, and posted on the Property on December 28, 2012. See R.R. at 21a, 43a-45a, 49a; see also Original Record (O.R.) Item 19 at Ex. C.
On December 2, 2014, the Redevelopment Authority filed a petition for leave to pay into the trial court estimated just compensation for properties condemned for the Logan Redevelopment, including $400.00 for the Property. See O.R. Item 9, Ex. A at 2. The trial court granted the petition on January 13, 2015, and the Redevelopment Authority deposited the monies with the trial court on March 11, 2015, for eventual distribution to Atuahene and other parties in interest. See O.R. Items 10, 11.
On October 4, 2018, Atuahene filed a petition to intervene in the Redevelopment Authority's condemnation action. See O.R. Item 14. On November 9, 2018, after a hearing, the trial court granted Atuahene's petition to intervene.
On November 19, 2018, Atuahene filed his Preliminary Objections to the Declaration, seeking to dismiss the Declaration for lack of notice (Objection No. 1) and/or strike it as invalid because the City previously condemned the Property (Objection No. 2). See R.R. at 22a-33a. Specifically, Atuahene contends that the Redevelopment Authority's notice was deficient because the City has been aware since 1990 that his legal and residential address was 5800 North 17th Street, Philadelphia, PA 19141 (North 17th Street Address). See Atuahene Prelim. Obj. at 6; R.R. at 29a. Atuahene also asserts that, between December 2004 and January 2005, the City demolished the Property without pre- and post-deprivation notice "[a]s part of a strategy ... to make way for [the Redevelopment Authority] to later file [the Declaration] to condemn Frempong-Atuahene's properties at no cost or at [a] lower cost to [the Redevelopment Authority]" and, thus, the Declaration is void. Atuahene Prelim. Obj. at 6; R.R. at 29a. Atuahene included the Petition in his Preliminary Objections, requesting therein that a board of viewers be appointed to assess damages to which Atuahene is entitled by reason of the City's 2004-2005 de facto taking/inverse condemnation of the Property. See R.R. at 29a-31a.
On December 7, 2018, the Redevelopment Authority filed its Preliminary Objections to Atuahene's Preliminary Objections, claiming that Atuahene's Preliminary Objections are barred by Section 306 of the Code, 26 Pa.C.S. § 306 (). See R.R. at 34a-38a, 47a-51a; see also Redevelopment Authority's Supplemental Reproduced Record (S.R.R.) at 1b-5b, 18b-22b. The Redevelopment Authority's Preliminary Objections also challenged the Petition, stating that it was barred by Section 19.2 of the URL, 35 P.S. § 1719.2 ().5 See R.R. at 38a-39a, 51a-53a; see also Redevelopment Authority's S.R.R. at 5b-6b, 22b-24b. On January 7, 2019, Atuahene filed his answer to the Redevelopment Authority's Preliminary Objections. See R.R. at 55a-64a.
On January 24, 2019, in two separate orders, the trial court sustained the Redevelopment Authority's Preliminary Objections, overruled Atuahene's Preliminary Objections and dismissed Atuahene's Preliminary Objections and the Petition. See O.R. Items 21, 22. Atuahene appealed to this Court. Pursuant to the trial court's March 5, 2019 order, Atuahene filed a statement of errors complained of on appeal on March 26, 2019. See O.R. Item 27. The trial court issued its opinion on July 23, 2019. See R.R. at 66a-79a.
Atuahene argues that the trial court erred by dismissing his Preliminary Objections and his Petition as time-barred because the Redevelopment Authority's failure to strictly comply with the Code's notice requirements and constitutional due process of law caused his late filings.
Petition of Ramsey , 31 Pa.Cmwlth. 182, 375 A.2d 886, 888 (1977).
"[This] [C]ourt's review of a trial court's decision to sustain or overrule preliminary objections to a declaration of taking ‘is limited to a determination of whether the trial court abused its discretion or committed an error of law.’ " In re Condemnation by Dep't of Transp., of Right-of-Way for State Route 0022, Section 034 in Twp. of Frankstown v. Commonwealth , 194 A.3d 722, 728 n.8 (Pa. Cmwlth. 2018) (quoting In re Redevelopment Auth. of the City of Phila. , 595 Pa. 241, 938 A.2d 341, 345 (2007) ).
The power of discretion over what areas are to be considered blighted[, like the Logan Redevelopment area,] is solely within the power of the [Redevelopment] Authority. The only function of the courts in this matter is to see that the [Redevelopment] Authority has not acted in bad faith; to see that the [Redevelopment] Authority has not acted arbitrarily; to see that the [Redevelopment ] Authority has followed the statutory procedures in making its determination; and finally, to see that the actions of the [Redevelopment ] Authority do not violate any of our constitutional safeguards .
In re Condemnation by Urban Redevelopment Auth. of Pittsburgh , 822 A.2d 135, 138 (Pa. Cmwlth. 2003) (emphasis added). Here, the trial court dismissed Atuahene's Preliminary Objections as time-barred.
"In eminent domain cases, preliminary objections are intended as a procedure to resolve expeditiously the factual and legal challenges to a declaration of taking before the parties proceed to determine damages." Twp. of Millcreek v. Angela Cres Tr. of June 25, 1998 , 142 A.3d 948, 952 n.2 (Pa. Cmwlth. 2016). Accordingly, Section 306(a)(1) of the Code mandates: "Within 30 days after being served with notice of condemnation, the condemnee may file preliminary objections to the declaration of taking." 26 Pa.C.S. § 306(a)(1). However, Section 306(a)(2) of the Code authorizes that "[t]he [trial] court upon cause shown may extend the time for filing preliminary objections." 26 Pa.C.S. § 306(a)(2). Specifically, a trial court may permit late filing where the condemnee offers good cause and the condemnor is responsible for the delay . See In re Condemnation of .036 Acres, More or Less, of Land Owned by Wexford Plaza Assocs. , 674 A.2d 1204 (Pa. Cmwlth. 1996) (a trial court properly dismissed late-filed preliminary objections where the condemnee offered no good cause for the delay and the condemnor was not responsible therefor); see also Appeal of Hill , 118 Pa.Cmwlth. 436, 545 A.2d 463 (1988). Consequently, whether the trial court erred by dismissing Atuahene's Preliminary Objections as time-barred depends upon whether the Redevelopment Authority properly served him with notice.
The law is well settled that "[t]he [Code] is the exclusive procedure for giving notice to a condemnee of the declaration of taking." N. Penn Water Auth. v. A Certain Parcel of Land , 168 Pa.Cmwlth. 477, 650 A.2d 1197, 1200 (1994). Section 305 of the Code specifies, in pertinent part:
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