Appeal from the Order of the Court of Common Pleas of Cambria County in case of Redevelopment Authority of the City of Johnstown v. Robert A. Tross and Edith V. Tross and Robert A. Tross, Jr., and Virginia Tross, Executors of the Estate of Edith V. Tross, No. 629 September Term, 1969.
Gilbert E. Caroff, for appellant.
J. Phillips Saylor, with him Spence, Custer, Saylor, Wolfe & Rose, for appellees.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer.
[ 20 Pa. Commw. Page 105]
This very interesting appeal is a sequel to Tross v. Johnstown Redevelopment Authority, 8 Pa. Commonwealth Ct. 605, 302 A.2d 883 (1973), wherein we reversed the Court of Common Pleas of Cambria County's grant of a new trial in this eminent domain case.
The appellees, Robert A. Tross, Jr., and Virginia Tross, executors of the estate of Edith V. Tross, deceased, and Robert A. Tross were the owners of a property improved with a four-story building and located at the intersection of Main and Market Streets in the City of Johnstown. One side of the first floor of this building was occupied by a long-term tenant, Coleman Diners, Inc. (Coleman). It contained numerous items ordinarily used in the restaurant business, such as coolers, ranges, tables, and counters, many of which were specifically manufactured to fit into the spaces provided for them in the renovating of the diner.
On April 1, 1968, the Redevelopment Authority of the City of Johnstown (Authority) filed a declaration of taking whereby it acquired the interests both of the appellees and of Coleman in the property. Negotiations to arrive at voluntary settlements were unsuccessful. The Authority then offered to pay the appellees $115,000 and the tenant Coleman $55,185. The Authority requested a receipt and stipulation to be executed by the condemnees relative to receipt of the money being paid. The stipulation executed in September 1968 contained two provisions that are of significance to this appeal:
[ 20 Pa. Commw. Page 106]
(1) "Whereas, Authority seeks assurance that any funds it advances to Owner and Tenant will ultimately be applied to the gross amount of damages which Authority becomes liable for as a result of an award by a Board of Viewers, a jury on appeal or by settlement, regardless of the apportionment determined by viewers or the court." (Emphasis supplied.)
(2) "Owner and Tenant acknowledge receipt of $155,000.00*fn1 from Authority and agree that said sum of $155,000.00 shall be deducted from the total amount of compensation ultimately due both Owner and Tenant, regardless of the ratio or apportionment of such compensation as determined by a Board of Viewers, the common pleas court or jury, or by stipulation, and regardless of whether the compensation is due for the taking of real or personal property or the removal or relocation of machinery, equipment and fixtures." (Emphasis and footnote supplied.)
Upon trial, Coleman was nonsuited, on motion of the Authority, as a result of failing to place its lease in evidence and its failure to present testimony relative to the value of its leasehold or with respect to any special damages to which it was entitled. Thereafter, the jury returned a verdict in favor of the appellees in the amount of $140,000. Appellees now demand the difference between $115,000 which the Authority had previously paid them and the $140,000 verdict. The Authority contends no further payment is due the appellees because of the provisions in the stipulations that the $170,185 paid to appellees ...