Appeal from the Order of the Court of Common Pleas of Allegheny County in case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, of Right of Way, for Legislative Route 1021, Section 4 R/W, a limited access highway in Ross Township; Parcel No. 69 -- Mobil Oil Corporation, No. 3778 April Term, 1971.
Leonard M. Mendelson, with him Hollinshead & Mendelson, for appellant.
John M. Tighe, Special Assistant Attorney General, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr.
[ 11 Pa. Commw. Page 594]
The singular issue presented by this appeal is whether a board of viewers has jurisdiction to hear and determine a claim for business dislocation damages asserted under Section 601A(b)(3) of the Pennsylvania Eminent Domain Code of 1964.*fn1
Pursuant to Commonwealth Court Rule 89, the parties hereto have stipulated to the factual and procedural posture of the case. On March 31, 1971, the Commonwealth of Pennsylvania (Condemnor) filed a declaration of taking condemning in its entirety property owned by Mobil Oil Corporation (Condemnee) which had been leased to George L. Zozos (Zozos). Possession of the property was delivered to the condemnor on December 30, 1971, and, upon petition of the condemnee, a Board of Viewers was appointed to ascertain damages. The Board of Viewers (Board) filed its report on March 13, 1972, awarding condemnee $142,000 for the loss of its real estate and $5,000 business dislocation damages. Condemnor appealed this award, but thereafter settled the real estate damages claim for $140,000. The parties stipulated that the unsettled claim for business dislocation damages would be tried before the Court of Common Pleas of Allegheny County without a jury.
Subsequent to the filing of this appeal, condemnee obtained an assignment of any claim for business dislocation damages from Zozos. On September 28, 1972,
[ 11 Pa. Commw. Page 595]
Judge Price entered an Order without prejudice to its assertion of its own cause of action based on the new assignment which precluded condemnee from asserting at trial its claim for business dislocation damages by reason of this assignment. With mutual consent of the parties, Judge price entered an Order remanding the case to the Board of Viewers to determine the qualifying business dislocation damages due condemnee pursuant to the new cause of action flied by condemnee.
The Board of Viewers filed its report on March 19, 1973, and denied both parties all relief and held that it was without jurisdiction to determine the claim for business dislocation damages. The Board apparently believed that Section 601A(b)(3) of the Eminent Domain Code, as implemented by Section 103.4(e) of the Justice Department's Regulations on Uniform Relocation Assistance [2 Pa. B. 733]*fn2 vested exclusive jurisdiction to hear and determine such a claim in the "acquiring agency," here the Department of Transportation. Both the condemnee and condemnor appealed this report.
After initially vacating the report and remanding the claim to the Board of Viewers, Judge Silvestri of the same court entered an Order on April 9, 1972 confirming the position of the Board of Viewers. We hold that this was error and must reverse.
To our knowledge, a Board of Viewers' jurisdiction to initially hear and determine claims for business dislocation damages has never before been challenged and in our judgment for good reason. In petitioning ...