In Re: A Condemnation Proceeding In Rem by the Red. Auth. of the City of Philadelphia ~ Appeal of: H. Mansour ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: :
:
A Condemnation Proceeding In Rem by :
the Redevelopment Authority of the City :
of Philadelphia for the Purpose of : No. 1071 C.D. 2019
Redevelopment of North Philadelphia : Argued: June 8, 2020
Redevelopment Area, Model Cities Urban :
Renewal Area, Condemnation No. 31L :
Including Certain Land Improvements and :
Properties :
:
Appeal of: Hussein Mansour :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge1
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: January 6, 2021
Hussein Mansour (Appellant) appeals the order of the Philadelphia
County Court of Common Pleas (trial court) granting the Philadelphia
Redevelopment Authority’s (Authority) Motion to Strike Deeds (Motion), and
directing that: (1) the July 31, 2006 deed from Philadelphia County (County)
Sheriff John D. Green (Sheriff) as grantor to Maya Elkhansa (Elkhansa) and Nawal
Mansour (N. Mansour) as grantees, recorded in the City of Philadelphia’s (City)
Department of Records on August 25, 2006, as Document ID #51516769, be
1
The decision in this case was reached prior to January 4, 2021, when Judge Brobson
became President Judge.
stricken; (2) the April 15, 2011 deed from N. Mansour, by Appellant as her
attorney-in-fact, and Elkhansa as grantors to Appellant as grantee, recorded in the
City’s Department of Records on May 18, 2011, as Document ID #52348550, be
stricken; and (3) the County’s Recorder of Deeds shall record the trial court’s
order, along with the legal description of the property located at 1907-15 Ridge
Avenue, as evidence that the Authority is the owner of that property. We reverse
and remand.
On August 11, 2005, the Authority filed in the trial court a
Declaration of Taking, pursuant to its authority under Sections 9(i) and 12 of the
Urban Redevelopment Law,2 with respect to property identified, inter alia, as
2
Act of May 24, 1945, P.L. 991, as amended, 35 P.S. §§1709(i), 1712. Section 9(i)
states, in relevant part:
[The] Authority shall constitute a public body, corporate and
politic, exercising public powers of the Commonwealth as an
agency thereof, which powers shall include all powers necessary
or appropriate to carry out and effectuate the purposes and
provisions of this act, including the following powers in addition
to those herein otherwise granted:
***
(i) To acquire by eminent domain any real property, including
improvements and fixtures for the public purposes set forth in this
act, in the manner hereinafter provided[.]
In turn, Section 12 states, in relevant part, that “[t]itle to any property acquired by [the] Authority
through eminent domain shall be an absolute or fee simple title, unless a lesser title shall be
designated in the eminent domain proceedings,” and that “[t]he Authority may exercise the right
of eminent domain in the manner provided by law for the exercise of such right by cities or
counties, as the case may be, of the same class as the city or county in which such Authority is
organized to operate.” 35 P.S. §1712.
2
1901-21 Ridge Avenue in the City. Reproduced Record (R.R.) at 40a-47a.3 That
same day, the Authority recorded a Notice of Condemnation with the County
Recorder of Deeds in the City’s Department of Records pursuant to former Section
404 of the former Eminent Domain Code,4 upon its condemnation of the property
identified in the Declaration of Taking. Id. at 51a-57a. The owner of a portion of
3
The former Section 402(a) of the Eminent Domain Code, Act of June 22, 1964, Spec.
Sess., P.L. 84, as amended, formerly 26 P.S. §1-402(a), repealed by the Act of May 4, 2006, P.L.
112, provided, in pertinent part:
(a) Condemnation, under the power of condemnation given by law
to a condemnor, which shall not be enlarged or diminished hereby,
shall be effected only by the filing in court of a declaration of
taking, . . . and thereupon the title which the condemnor acquires
in the property condemned shall pass to the condemnor on the date
of such filing, and the condemnor shall be entitled to possession as
provided in section 407.
4
Former Section 404 of the former Eminent Domain Code stated, in relevant part:
The condemnor, upon filing its declaration of taking, shall on the
same day lodge for record a notice thereof in the office of the
recorder of deeds of the county in which the property is located.
. . . The notice shall specify the court term and number of the
declaration of taking and the date it was filed, and shall contain a
description or plan of the property condemned sufficient for the
identification thereof and the names of the owners of the property
interests condemned, as reasonably known to the condemnor, and
shall be indexed in the deed indices showing the condemnee set
forth in the notice as grantor and the condemnor as grantee. . . .
Upon the notice being assigned a book and page number by the
recorder of deeds the condemnor shall file with the prothonotary
under the caption of the declaration of taking a memorandum of
the book and page number in which the notice is recorded.
Formerly 26 P.S. §1-404 (repealed).
3
the condemned property, the property located at 1901-15 Ridge Avenue, at the
time of condemnation was JIWI Rental Association, Inc. (JIWI). Id. at 56a.
On September 29, 2005, the City’s Office of Property Assessment and
Wachovia Bank, N.A. (Wachovia) filed a tax lien action in the trial court under the
statute popularly known as the Municipal Claims and Tax Liens Act (Liens Act)5
to collect unpaid real estate taxes on a portion of condemned property formerly
owned by JIWI, the property located at 1907-15 Ridge Avenue. R.R. at 23a-26a.
On March 9, 2006, a writ of execution was entered in the matter. Id. at 69a.
On June 13, 2006, the property located at 1907-15 Ridge Avenue was
sold by the Sheriff to Elkhansa and N. Mansour at a tax sale for $120,000.00. R.R.
at 25a-26a. On July 31, 2006, the Sheriff executed a deed conveying that property
from JIWI to Elkhansa and N. Mansour. Id. at 59a-62a. On August 25, 2006, the
Sheriff’s deed was recorded with the County Recorder of Deeds in the City’s
5
Act of May 16, 1923, P.L. 207, as amended, 53 P.S. §§7101-7455. Section 31.2(a) of
the Liens Act, added by the Act of March 15, 1956, P.L. (1955) 1274, 53 P.S. §7382(a), states, in
pertinent part:
(a) In . . . cities of the first class, whenever a claimant has filed its
tax or municipal claim in accordance with the requirements of this
act, it may file its petition in the court in which the proceeding is
pending, setting forth the facts necessary to show the right to sell,
together with searches or a title insurance policy, showing the state
of record and the ownership of the property, and of all tax and
municipal claims, mortgages, ground rents or other charges on, or
estates in, the land, as shown by the official records of the city . . .
and thereupon the court shall grant a rule upon all parties thus
shown to be interested, to appear and show cause why a decree
should not be made that the property be sold, freed and cleared of
their respective claims, mortgages, ground rents, charges and
estates. . . .
4
Department of Records as Document ID #51516769. Id. at 59a.6 The Authority
was not a party in the tax lien action and was not served with any of the court
filings related thereto. Id. at 129a, 137a, 138a, 140a. Nevertheless, the City’s
Board of Revision of Taxes recognized Elkhansa and N. Mansour as the record
owners of the property at 1907-15 Ridge Avenue. Id. at 75a.
On November 3, 2006, Elkhansa and N. Mansour were notified by an
adjacent property owner that title to the property at 1907-15 Ridge Avenue was not
vested in Wachovia, but was vested in the Authority. R.R. at 69a. Counsel for
Elkhansa and N. Mansour subsequently contacted the Authority and the Authority
confirmed that it claimed title to the property as of August 11, 2005. Id. As a
result, counsel for Elkhansa and N. Mansour filed a writ of summons regarding
title to the property and sent the Authority a letter regarding their claim to title to
the property. Id. at 69a-70a. On February 3, 2010, counsel filed a praecipe to
discontinue Elkhansa’s and N. Mansour’s action regarding their claim to title to the
property.
By deed dated April 25, 2011, Elkhansa and N. Mansour, by
Appellant as her attorney-in-fact, conveyed title to the property to Appellant for
$190,000.00. R.R. at 83a-87a. On May 18, 2011, the deed was recorded in the
City’s Department of Records as Document ID #52348550. Id. at 83a.7
By March 5, 2015 order, the trial court granted the Authority’s
Petition for Leave to Pay Estimated Just Compensation into Court, and $50,000.00
6
The documents relating to the tax sale were only kept for seven years in the normal
course of business and no longer exist. R.R. at 139a-140a.
7
It should be noted that the City’s Office of Property Assessment listed Appellant as the
property owner from April 14, 2011, until July 7, 2019. See https://property-
beta.phila.gov/#/?address=1907-15%20RIDGE%20AVE (last visited January 5, 2021).
5
was paid for the premises at 1901-15 Ridge Avenue “to the Prothonotary to hold
for the use of the person or persons entitled thereto in the above-captioned
proceedings[.]” Trial Court 3/5/15 Order at 1-2. The trial court’s order also
directed that it “is entered without prejudice to any party in interest to petition for
the Appointment of a Board of Viewers pursuant to the Eminent Domain Code[, 26
Pa. C.S. §§101 – 1106.]” Id. at 1. On June 1, 2015, the trial court’s Prothonotary
issued a Receipt for Deposit of Escrow – Custodia Legis Funds, which
acknowledged the Authority’s deposit of the funds pursuant to the trial court’s
order.
On June 24, 2016, the Authority, the administratrix of the estate of
JIWI’s former president, and JIWI’s then-president executed a Stipulation, which
states, in relevant part:
6. Just Compensation for the acquisition of the
Property in the amount of Fifty Thousand ($50,000.00)
Dollars was paid to the Prothonotary of the [trial court],
specifically in connection with the condemnation of the
[p]roperty, to hold same for the use of the person or
persons entitled thereto, by virtue of the Order of the
[trial court], dated March 5, 2015.
7. The balance of the estimated just compensation
remaining in court paid in connection with the
condemnation of 1901-15 Ridge Avenue, Philadelphia,
PA shall be paid to ADVANTAGE ABSTRACT, INC.,
so that distribution may be made thereupon to the person
or persons entitled thereto in accordance with Section
521 of the Eminent Domain Code. See 26 Pa. C.S.[]
§521.[8]
8
Section 521(b) of the Eminent Domain Code states:
(b) Distribution of damages.--
(Footnote continued on next page…)
6
6/24/16 Stipulation at 2 (emphasis in original).
On June 28, 2016, the trial court issued an order stating:
[I]n accordance with the foregoing Stipulation, the
Prothonotary is directed to pay the balance remaining in
court for the property located at 1901-15 Ridge Avenue,
Philadelphia, PA to ADVANTAGE ABSTRACT, INC.,
without commission or fees being deductible therefrom
for distribution to the person or persons entitled thereto.
Trial Court 6/28/16 Order (emphasis in original).
On July 28, 2016, the Authority, the administratrix of the estate of
JIWI’s former president, and JIWI’s then-president executed a Stipulation of
Payment of Condemnation Damages, which states:
This Stipulation is entered . . . by and between
Ryan D. Harmon, attorney for the [Authority], and
(continued…)
(1) The condemnor shall distribute the damages properly. If the
condemnor is unable to determine proper distribution of the
damages, it may, without payment into court, petition the court to
distribute the damages and shall furnish the court with a schedule
of proposed distribution.
(2) Notice of the filing of the petition and schedule of proposed
distribution shall be given to all condemnees, mortgagees,
judgment creditors and other lienholders, as shown in the proposed
schedule, in any manner as the court may direct by general rule or
special order.
(3) The court may hear the matter or may appoint a master to hear
and report or may order any issue tried by the court and jury as
may appear proper under all the circumstances.
(4) The court shall then enter an order of distribution of the fund.
26 Pa. C.S. §521(b).
7
[JIWI], the former owner of premises 1901-15 Ridge
Avenue (the “Premises”).
It is hereby stipulated and agreed that:
1. The Authority condemned the Premises
pursuant to the Declaration of Taking filed as of the
above court term and number.
2. The Authority made payment in the amount
of Forty-Six Thousand Six Hundred Ninety-Four Dollars
and Eighty-Seven Cents ($46,694.87), the balance
remaining from the $50,000 payment into Court, plus
delay damages in the amount of Eighteen Thousand Six
Hundred Sixty-One Dollars and Fifty-One Cents
($18,661.54) [sic] to [JIWI], the former owner of the
Premises in full satisfaction of such former owner’s
condemnation claims.
R.R. at 27a-28a (emphasis in original).
On March 3, 2019, the Authority filed the instant Motion to strike the
deeds of Appellant, N. Mansour, and Elkhansa in the trial court under the docket
number and caption of the foregoing former Eminent Domain Code action. The
Authority and Appellant entered into a Stipulation in which they “stipulate[d] and
agree[d] to the entry of the proposed Consent Order submitted herewith.” 4/3/19
Stipulation. In turn, the trial court issued an April 5, 2019 Consent Order, which
states, in relevant part, that “[Appellant] is JOINED in this action as an Intervening
party.” Trial Court 4/5/19 Consent Order.
On June 13, 2019, following argument on the Motion, but without
taking any evidence, the trial court issued an order granting the Motion striking
Elkhansa’s, N. Mansour’s, and Appellant’s deeds, and directing the filing of the
8
order as proof of the Authority’s title to the property. Trial Court 6/13/19 Order.
Appellant then filed this appeal. 9
On appeal, Appellant raises a number of issues regarding the trial
court’s purported error in granting the Authority’s Motion. Notwithstanding, we
are constrained to reverse the trial court’s order on the basis that it was without
jurisdiction in the first instance to determine Appellant’s title to the property via
the Authority’s Motion that was filed under the caption and docket number of the
former Eminent Domain Code proceedings.10
As outlined above, neither Appellant nor his predecessors in title were
ever a party to, and never participated in, the eminent domain proceedings
involving the condemnation of the property formerly owned by JIWI located at
1901-15 Ridge Avenue. The mere filing of a motion to intervene, after full and
complete satisfaction of all just compensation was made to the record owner, JIWI,
was not sufficient to confer intervenor status upon Appellant or his predecessors in
title in those eminent domain proceedings. See, e.g., Appeal of Gottlieb, 63 A.2d
42, 43 (Pa. 1949) (“It is obvious that petitioner’s request for leave to intervene is
hopelessly belated inasmuch as the taking of the land in question occurred nearly
twenty years ago and the owner finally withdrew his claim more than nine years
ago. If there is to be any intervention at all, it must be timely.”); Kovacs v.
9
Because this appeal presents pure questions of law, our standard of review is de novo
and our scope of review is plenary. Seeton v. Pennsylvania Game Commission, 937 A.2d 1028,
1032 n.4 (Pa. 2007).
10
“It is well settled that questions of jurisdiction can never be waived, and they may be
raised at any time by the parties or sua sponte by an appellate court.” Riverwatch Condominium
Owners Association v. Restoration Development Corporation, 931 A.2d 133, 138 n.5 (Pa.
Cmwlth. 2007) (citation omitted).
9
Redevelopment Authority of City of Philadelphia, 328 A.2d 545, 547-48 (Pa.
Cmwlth. 1974) (“Goodman should not have been permitted to intervene. [Former]
Section 506(b) of the [Eminent Domain Code, formerly] 26 P.S. §1-506(b)
([repealed]), provide[d]: ‘(t)he court may permit a mortgagee, judgment creditor
or other lienholder to intervene in the proceedings where his interest is not
adequately protected . . . .’ Goodman was not a judgment creditor . . . and she was
not a lienholder. . . . Of equal impropriety, of course, was that portion of the lower
court’s order directing the condemnee and its principal stockholder to pay the
intervening ‘successor owner’ $500 a week.”).11
Moreover, and more importantly, the instant action seeking to strike
the deeds in question may not be initiated by the mere expedience of the filing of
the Authority’s Motion. Indeed, as the Pennsylvania Superior Court has explained:
[Pa. R.C.P. No.] 1007 provides that “[a]n action
may be commenced by filing with the prothonotary (1) a
praecipe for a writ of summons, or (2) a complaint.”
[S]ee also Pa. R.C.P. [No.] 1063 (stating that action to
quiet title shall be commenced by filing of complaint
with prothonotary); Pa. R.C.P. [No.] 1061(b)(2), (3)
(providing that quiet title action may be brought to
determine validity of “deed affecting any right, lien, title
or interest in land” or to “compel an adverse party to . . .
cancel . . . any deed”).
11
See also Section 19.2 of the Urban Redevelopment Law, added by the Act of October
2, 2002, P.L. 796, 35 P.S. §1719.2 (“Notwithstanding the provisions of 42 Pa. C.S. §5526(4)
(relating to five year limitation) or any other provision of law to the contrary, a proceeding to
challenge just compensation or other damages if a redevelopment authority has exercised powers
of condemnation pursuant to this act and made payment in accordance with section 407(a) or (b)
of the [Eminent Domain Code], is subject to a one-year statute of limitations.”); Harkovich v.
Pfirrmann, 627 A.2d 776, 779 (Pa. Super. 1993) (“The lack of in personam jurisdiction over the
plaintiffs with respect to the relief sought by the defendant in his counterclaim in this case
renders the judgment against the plaintiffs absolutely void and a nullity. It also precludes the
award of a new trial.”) (citation omitted).
10
Here, [the lot owner] commenced this action by
filing with the trial court a “Motion to Remove Deed
from Record.” As our Supreme Court has recognized,
however, “[n]owhere do the rules [of civil procedure]
provide for commencing an action by a petition.”
Hartmann v. Peterson, [265 A.2d 127, 128 (Pa. 1970)].
“With no complaint, summons or amicable agreement to
bring [an] action within the power to act of the court
below, [the court] has no power to make any order
whatsoever, including an order allowing the filing of a
complaint nunc pro tunc.” Id.; see also In re Casale,
[517 A.2d 1260, 1263 (Pa. 1986)] (“[A]n action brought
by petition and rule, neither authorized by statute nor
auxiliary to jurisdiction already obtained and not
designed to correct the court’s own records, is a nullity
and confers no jurisdiction on the court.”) (footnote
omitted); Wm. Garlick & Sons, Inc. v. Lambert, [287
A.2d 143, 144 (Pa. 1972)] (stating that “a petition is only
permitted where it is ancillary to an already pending
action”). Here, the trial court dismissed the action as not
properly commenced, but then ordered that the deed be
stricken despite the absence of a properly commenced
action. Because the trial court lacked jurisdiction, we
conclude that its order was a nullity. Accord In re
Corr[ection] of Official Records with Civ[il] Action, [404
A.2d 741, 742-43 (Pa. Cmwlth. 1979)] (reversing trial
court order directing recorder of deeds to remove oil and
gas leases from public records, where trial court lacked
jurisdiction because suit was improperly commenced by
petition and rule).
In re G.J.K. & Sons, LLC, 175 A.3d 1033, 1036 (Pa. Super. 2017) (footnotes
omitted). “[B]ecause the commencement of this action was improper under
Pa. R.C.P. No. 1007, the court below had no power to act whatsoever and there
was no jurisdiction established over appellant. The proceeding below was a
nullity. We must remand for dismissal of the proceeding.” In re Correction of
Official Records with Civil Action, 404 A.2d at 473 (citation omitted).
11
Accordingly, the trial court’s order is reversed, and the matter is
remanded to that court for dismissal of the proceeding.
MICHAEL H. WOJCIK, Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: :
:
A Condemnation Proceeding In Rem by :
the Redevelopment Authority of the City :
of Philadelphia for the Purpose of : No. 1071 C.D. 2019
Redevelopment of North Philadelphia :
Redevelopment Area, Model Cities Urban :
Renewal Area, Condemnation No. 31L :
Including Certain Land Improvements and :
Properties :
:
Appeal of: Hussein Mansour :
ORDER
AND NOW, this 6th day of January, 2021, the order of the
Philadelphia County Court of Common Pleas dated June 10, 2019, is REVERSED,
and the matter is remanded to that court for dismissal of the proceeding.
Jurisdiction is RELINQUISHED.
__________________________________
MICHAEL H. WOJCIK, Judge