Appeal from the order of the Court of Common Pleas of Philadelphia County, No. 1033, December Term, 1965, in case of In Re: a Condemnation Proceeding in Rem by the Redevelopment Authority of the City of Philadelphia, for the purpose of Redevelopment of Whitman Redevelopment Area, Whitman Urban Renewal Area, Philadelphia, including Certain Lands, Improvements and Properties. Appeal transferred September 14, 1970, to the Commonwealth Court of Pennsylvania by the Supreme Court of Pennsylvania.
Samuel Smith, with him Joseph V. Furlong, Jr., Edward C. Harkin, and Tabas Smith & Furlong, for appellants.
Paul Shalita, for appellee.
President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer, and Rogers. Opinion by Judge Rogers. Dissenting Opinion by Judge Manderino. Judge Kramer Joins in this dissent.
This is an appeal from a judgment entered upon a finding of a judge awarding damages for condemnation of lands after trial without a jury.
Prior to 1962, the appellants, Samuel DiAmbrosio and Beatrice DiAmbrosio (DiAmbrosio) owned a tract of land known as 308-10 Oregon Avenue in South Philadelphia. In 1962, DiAmbrosio entered into agreements with Acme Markets, Inc. (Acme), under which DiAmbrosio was to purchase a premises adjoining 308-10 Oregon Avenue and lease to Acme Markets both the tract owned and the one to be acquired at a rental of $12,500 per year. Acme agreed to lend DiAmbrosio $70,000 for the purchase of the adjoining property. As further consideration Acme agreed to pay DiAmbrosio the sum of $9,000 to defray the expense of removing junked automobiles on his premises. It was Acme's purpose to construct and operate a supermarket at the Oregon Avenue location.
After the agreements effectuating the arrangements just mentioned had been executed, but before any action was taken thereon, one Nat Levin, principal of Ranchland Builders, Inc. (Ranchland) conceived the idea of creating a large shopping center complex at the Oregon Avenue location and obtained ownership of or rights in several parcels of ground near the DiAmbrosio tract. Ranchland acting by Levin induced Acme and DiAmbrosio to terminate the agreements between them and the following arrangements were proposed in substitution thereof:
(1) Ranchland would construct the Acme Supermarket on land owned by Ranchland and lease the same to Acme.
(2) The DiAmbrosio property at 308-10 Oregon Avenue would become the parking lot of the shopping center of which the Acme Supermarket would be a part.
(3) Ranchland would lease from DiAmbrosio 308-10 Oregon Avenue for the sum of $8,000 per year.
(4) DiAmbrosio would receive, in addition to the rentals provided for in the Ranchland lease, the sum of either $18,000 or $20,000*fn1 and an equity in the shopping center complex, expressed at the trial by DiAmbrosio's counsel as "two percent over three and one-half million," presumably of sales at the shopping center.
(5) Since a parking lot was vital to the success of the center, Acme, Ranchland and another tenant, First Pennsylvania Bank, required protection in the use of certain of the properties involved for this purpose. This was to take the form of a document referred to as a Reciprocal Parking Agreement conferring upon Acme, the First Pennsylvania Bank, Ranchland and DiAmbrosio the right to use said properties, ...