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REDEVELOPMENT AUTHORITY CITY CHESTER v. EDWARD J. SWAGER AND THELMA A. SWAGER (03/11/74)

decided: March 11, 1974.

REDEVELOPMENT AUTHORITY OF THE CITY OF CHESTER, APPELLANT,
v.
EDWARD J. SWAGER AND THELMA A. SWAGER, HIS WIFE, APPELLEES



Appeal from the Order of the Court of Common Pleas of Delaware County in case of Edward J. Swager and Thelma A. Swager, his wife, v. Redevelopment Authority of the City of Chester, No. 7795 of 1971.

COUNSEL

Samuel M. Tollen, for appellant.

Thomas L. Kelly, with him Eckell, Sparks, Vadino, Auerbach & Monte, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 12 Pa. Commw. Page 438]

On or about March 5, 1971, the Redevelopment Authority of the City of Chester (Authority) and Edward J. and Thelma A. Swager (Swager) entered into an option agreement for the purchase of real estate owned by Swager in the City of Chester. Located on this property was a business known as "Ed's Auto Body & Fender Shop" which was owned and operated by Swager. The agreement granted to the Authority the option to purchase the property for the sum of Eighty-Five Thousand ($85,000.00) Dollars. The agreement

[ 12 Pa. Commw. Page 439]

    also reserved to Swager the right to proceed under the appropriate provisions of the Eminent Domain Code, Act of 1964, Special Sess., June 22, P.L. 84, as amended, 26 P.S. ยง 1-101 et seq., for reimbursement for business dislocation expenses, moving expenses, and closing expenses incidental to the purchase of new business property. The option was exercised by the Authority and settlement was made on March 17, 1971.

On May 28, 1971, Swager acquired replacement property and subsequently, on or about July 22, 1971, after moving his business to the new location, filed a petition for the appointment of viewers with the Court of Common Pleas of Delaware County. A Board of Viewers was appointed that day. The petition claimed business dislocation damages and expenses incidental to the purchase of the replacement property. Thereafter Swager amended the petition to include moving expenses.

Following a hearing before the Board on October 12, 1971, it filed a report in the lower court, awarding Swager business dislocation damages in the amount of Five Thousand ($5,000) Dollars and moving expenses in the amount of Four Thousand One Hundred and Ninety-Six ($4,196.00) Dollars. The moving expenses were subsequently paid by the Authority. The Board did not decide the issue of expenses incidental to the acquisition of the replacement property as that matter was before the Court of Common Pleas of Delaware County which subsequently decided the issue against the Authority.*fn1 This award was also paid.

On April 18, 1972, the Authority appealed the award of $5,000 to the lower court. A trial without jury was held, after which the Honorable Francis J. Catania filed an opinion and order which awarded Swager business displacement damages in the sum of Ten Thousand

[ 12 Pa. Commw. Page 440]

($10,000) Dollars,*fn2 reasonable attorney's fees in the sum of Two Thousand Three Hundred ($2,300) Dollars, and delay compensation on Five Thousand ($5,000) Dollars from March 20, 1972, to the date of payment.

On February 7, 1973, the Authority appealed this order to this Court.

The Authority presses three contentions which, in effect, challenge the entire order of the lower court. First, the Authority argues that the award of business location damages to Swager was improper. Secondly, the Authority contends that the lower court erred in awarding "reasonable attorney's fee of $2,300" and finally, the Authority argues that the ...


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