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January 7, 1964


Appeal, No. 268, Jan. T., 1963, from order of Court of Common Pleas No. 3 of Philadelphia County, Sept. T., 1958, No. 827, in re appeal by Redevelopment Authority of City of Philadelphia from award by Board of View to Joseph Pacifico and American Oil Co. Order affirmed.


C. Laurence Cushmore, Jr., with him Michael H. Malin, Joseph D. Morelli, and White & Williams, for appellant.

Edward L. Snitzer, with him Stanley E. Gordon and Milton C. Sharp, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Cohen

[ 413 Pa. Page 340]


We here consider the refusal of the court below to quash an appeal brought to it by the Redevelopment Authority of the City of Philadelphia from the award of the board of view in an eminent domain proceeding.

The property in issue, located in the Eastwick section of Philadelphia, was owned by appellant, Joseph Pacifico. Two tenants occupied the property, the American Oil Company which operated a gasoline station thereon, and Aero Diner Inc., which operated an adjacent diner. In 1958, the redevelopment authority, in pursuance to an overall plan of redevelopment in the Eastwick section, took this property under its power of eminent domain. A board of view was appointed to assess the damages sustained by the owner and the tenants by virtue of the taking. The board of view made an overall assessment of the loss incurred and allocated such damages between Pacifico and the Oil Company. No damages were apportioned to Aero Diner.

Appellee took an appeal to the Court of Common Pleas No. 3 of Philadelphia County, alleging that the award was excessive and unreasonable, and did not represent the fair market value of the plot taken. Appellant filed a motion to quash the appeal on the ground that a separate appeal should have been taken from each of the allocated awards. The court below denied the motion and Pacifico appealed to this Court.*fn1

[ 413 Pa. Page 341]

The principal question for our determination is whether, under the circumstances of this case, a single appeal from the awards of the board of view to the court of common pleas was proper.*fn2 The legislatively prescribed procedure here applicable and followed by the board of view inescapably leads to the conclusion that the appeal to the court below was properly taken. The Act of July 1, 1937, P.L. 2667, No. 528, 26 P.S. § 44 (1958) provides: "In all cases arising from the taking, injury, or destruction of private property under the right of eminent domain, where the owner or owners of the fee and any lessee or lessees under such owner or owners shall be claimants for damages, all such claims shall be heard or tried together; and there shall be awards by a board of view or verdicts by the jury on appeals, which shall fix, first, the total amount of damage to the property in question, and second, the apportionment, distribution, or division of the total damages so awarded between or among the several claimants therefor."

[ 413 Pa. Page 342]

This statute prevents the separate determination of the owner's and tenant's claim for damages, the purpose being to maximize the fairness and accuracy of the total award and the apportionment thereof. Since the statute requires that the claims of both interests be tried together, both before the board of view and the court of common pleas, there is no apparent reason why separate appeals are necessary to make the viewer's awards reviewable by common pleas. If separate appeals were taken, compliance with the statutory mandate would necessitate their consolidation for trial. See Goodrich-Amram, 14 Standard Pennsylvania Practice § 161 (1939) and cases cited therein. See also Comly v. Philadelphia, 153 Pa. Superior Ct. 539, 35 A.2d 85 (1943). The taking of one appeal to a court of common pleas from awards of a board of view for damages sustained by an owner and lessees of the same property is the proper procedure. The order of the court below is therefore affirmed.


Order affirmed.

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