Date: 04-18-2001

Case Style: Waldron St. Brook Co. v. Pittsburgh

Case Number: 1590 C.D. 1999

Judge: Flaherty

Court: Commonwealth Court of Pennsylvania

Plaintiff's Attorney: Stuart M. Levine, Pittsburgh, Pennsylvania

Defendant's Attorney: Sharon M. O'Neill, Pittsburg, Pennsylvania

Description: The Waldron Street Book Company, d/b/a Bradley's Book Cellar (Bradley's) appeals from an order of the Court of Common Pleas of Allegheny County (trial court) which sustained the preliminary objections filed by the City of Pittsburgh (City) and the Urban Redevelopment Authority of Pittsburgh (URA) in response to Bradley's petition under Section 502(e) of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. §1- 502(e), for the appointment of viewers. We affirm.

In 1994, Bradley's entered into a lease for premises at 223 Fifth Avenue in the block between Wood and Market Streets in Pittsburgh, commencing February 1, 1995. Although the lease expired on January 31, 1998, Bradley's continues to occupy the space on a year-to-year basis. The premises are located in the Inner Triangle Study Area, certified as blighted by the Planning Commission (Commission) in accordance with the Urban Redevelopment Law, and designated as Redevelopment Area No. 54.

The facts in this case as determined by the trial court and not challenged on appeal are as follows. In March of 1997, two and one-half years after Bradley's opened for business, the City began a street renovation project known as the Fifth Avenue Project Phase II (Phase II) along several blocks of Fifth Avenue, including Bradley's block. Phase II consisted of installation of new water lines, elimination of vaults under sidewalks, new traffic signs and street lighting, and reconstruction of curbs and sidewalks. Smithfield Street and Liberty Avenue were closed to pedestrian and vehicular traffic from 8:30 p.m. to 4 a.m. Monday through Thursday, but they were never closed during daylight business hours. Pedestrians were able to walk down Fifth Avenue from Wood Street to Market Street on both sides of the street, although barricades and fences were erected for safety reasons. Access to all stores including Bradley's was maintained via the use of walkways to each storefront with handrails on both sides. Legal crosswalks were maintained and a hundred-foot loading zone lane was established to enable merchants to receive deliveries. During the renovations to Fifth Avenue, the URA imploded buildings on Fifth Avenue and Wood Street to make room for construction of the Lazarus department store. Renovations to Fifth Avenue were completed on October 31, 1998.

In addition to the Lazarus construction and street improvements, the City and URA were planning an upscale retail development known as The Marketplace at Fifth and Forbes (Marketplace). Reports indicated that the Marketplace would encompass Bradley's premises.

On March 25, 1998, Bradley's alleged a de facto taking and petitioned for the appointment of viewers. On April 6, 1998, a board of viewers was appointed. On April 24, 1998, the City and URA filed preliminary objections. The trial court thereafter sustained the preliminary objections and vacated the appointment of viewers. This appeal followed.

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Click the case caption above for the full text of the Court's opinion.

Outcome: Affirmed.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None