Lewis Kates, Kates, Livesey & Edelstein, Philadelphia, for appellant.
James D. Crawford, Richard D. Malmed, Philadelphia by Randall E. Ellington, Law Student Certified Pursuant to Rule 11 of the Pennsylvania Supreme Court, Redevelopment Authority of the City of Philadelphia, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., filed a dissenting opinion.
The question presented by this appeal is whether the trial court was correct in sustaining preliminary objections to appellant's complaint in mandamus, and dismissing the suit. Unfortunately, several deficiencies in the record before us make it impossible to give an informed answer to the question. We will therefore reverse and remand.
The background of the present action is an eminent domain proceeding wherein the appellant was the condemnee and the appellee Authority was the condemnor. While no part of the record in that case is included in the record now before us, it appears that the declaration of taking occurred on September 23, 1964 and that possession of the condemned premises (of which appellant was a lessee) was relinquished on June 19, 1965. Thereafter appellant obtained jury verdicts of $3,000 for relocation of machinery and equipment and $2,500 for business relocation damages,*fn1 and judgment was entered in its favor in the amount of $5,500.
The Authority tendered payment of the amount of the judgment, but did not include appellant's costs ($336)*fn2 or delay compensation for the period following surrender of possession.*fn3 The tender was declined by
appellant, who then brought the present action in mandamus to compel payment in the amount of its judgment plus costs and compensation for delay. The appellee responded with four preliminary objections: the Authority is not a proper party defendant in a mandamus action; venue is improperly laid as to appellee in a county other than Dauphin; pendency of another action involving the same dispute renders the mandamus suit non-justiciable; an adequate remedy at law exists in the court which tried the eminent domain case to determine the basic issue, viz., whether delay compensation is recoverable with respect to business relocation damages. Appellant filed an answer to the preliminary objections denying all material allegations of fact, and averring, as new matter, a deviation by the Authority from its acknowledgment in the eminent domain case that appellant was entitled to delay compensation on the total amount of its verdicts. Eight months later the trial court entered its order sustaining the objections and dismissing the complaint. This appeal followed.*fn4
The preliminary objections and the answer thereto put in issue the factual question whether the Authority had made a tender of delay compensation in any amount, and whether the Authority had in effect repudiated an undertaking to pay delay compensation with respect to damages arising from business dislocation. These factual matters were left unresolved.*fn5 The objections and the answer also raised several discrete legal questions. The order appealed from, however, said simply that "the Preliminary Objections . . . are sustained . . ." No opinion was filed by the lower court.*fn6 For aught that appears from the record, therefore, the court sustained all the objections. Although the briefs in this Court indicate that the lower court may ...