Appeal from order of Court of Common Pleas of Allegheny County, Oct. T., 1967, No. 3359, in re petitions of Harry Fisher et al. for the appointment of viewers to assess damages.
Joseph M. Zoffer, with him Royston, Robb, Leonard, Edgecomb, Miller & Shorall, for appellants.
William J. Staley, with him John P. Papuga, and Patterson, Crawford, Arensberg & Dunn, for Public Parking Authority of Pittsburgh, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Musmanno did not participate in the decision of this case. Concurring Opinion by Mr. Justice Cohen. Concurring Opinion by Mr. Justice Roberts.
This is an appeal from the Order of the Court of Common Pleas, sustaining defendant's preliminary objections to plaintiffs' petition for the appointment of a Board of Viewers. The question involved is whether lessees of property purchased by the Public Parking Authority of Pittsburgh are entitled, after the termination of their leases, to business dislocation damages under Section 609 of the Eminent Domain Code of June 22, 1964, P. L. 84, 26 P.S. 1-609.
The plaintiffs are tenants of what were commercial properties in downtown Pittsburgh. The premises which they had occupied as lessees were purchased by the Parking Authority from the owners-lessors by private negotiation and sale, rather than by statutory condemnation. At the time of the sale to the Parking Authority, plaintiffs were lessees in possession of their respective leasehold interests. Each of them was permitted by the Authority to remain on his leased premises until each of the leases had expired. Only when all the leases had terminated did the plaintiffs vacate the premises; the Parking Authority then caused the properties to be torn down a month later.
It is agreed by all the parties that the Parking Authority had the legal power to acquire the properties from the owners by private purchase. Parking Authority Law, Act of June 5, 1947, P. L. 458, §§ 5, 10, 53 P.S. §§ 345, 349, as amended, 1963, P. L. 181, § 1. The Authority is not mandated by any statute to proceed by condemnation, nor prohibited to acquire property by private purchase. Nevertheless, plaintiffs contend that by acquiring the property by private sale, while plaintiffs were in actual possession under their respective leases, the Parking Authority in effect condemned their properties and deprived them of dislocation damages to which they would otherwise have been
entitled, and thereby entitled them to the appointment of a Board of Viewers.
Plaintiffs rely principally on Section 609 of the Eminent Domain Code, supra. Section 609 provides: "The condemnee*fn* shall be entitled to damages, as provided in this section, for dislocation of a business located on the condemned property, but only where it is shown that the business cannot be relocated without substantial loss of patronage.*fn** . . . A tenant shall be entitled to recover for such business dislocation even though not entitled to any of the proceeds of the condemnation." Eminent Domain Code, 1964, P. L. 84, § 609, 26 P.S. § 1-609.
There is no merit in plaintiffs' contention. A tenant whose lease has expired is not a condemnee under the Eminent Domain Code.*fn* A "condemnee" is defined by § 201 of the Eminent Domain Code as: "The owner of a property interest taken, injured or destroyed but does not include a mortgagee, judgment creditor or other lienholder."
In Miller v. Beaver Falls, 368 Pa. 189, 82 A.2d 34, the Court said (pages 196, 197): ". . . '"and it may be laid down as a general proposition, based upon the nature of property itself, that, whenever the lawful rights of an individual to the possession, use or enjoyment of his land are in any degree abridged or destroyed by reason of the exercise of the power of ...