Appeals from the Order of the Court of Common Pleas of Dauphin County in case of Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, of right of way for Legislative Route 1005-2 in Susquehanna Township at Front and Easterton Streets. Edwin B. Hershey, Executor of the Estate of Mary E. Hershey v. Commonwealth of Pennsylvania, Department of Transportation, No. 1815 June Term. 1973.
Robert C. Spitzer, with him Nauman, Smith, Shissler & Hall, for appellant, Exxon Corporation.
Henry W. Rhoads, with him Robert L. Weldon, and Rhoads, Sinon & Reader, for appellant, Edwin B. Hershey.
Thomas R. Jargiello, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Kramer.
[ 20 Pa. Commw. Page 539]
This opinion involves two appeals from an order from the Court of Common Pleas of Dauphin County which sustained the objection of Exxon Corporation to a report of a Board of View and overruled objections of Edwin B. Hershey, Executor of the Estate of Mary E. Hershey. These two objectors are the appellants in the two appeals. The lower court concluded that Exxon had a compensable leasehold interest in land owned by Hershey and that, therefore, the Board of View erred in refusing to award Exxon damages. The court also refused to remand the proceedings to the Board of View, as had been requested by Exxon.
The record before us consists only of pleadings and the opinion and order of the court below. By a lease dated July 12, 1957, Exxon (then Esso Standard Oil Company) leased a parcel of ground from Hershey for use as a service station. The lease was for a fixed term of 15 years, commencing August 1, 1957 and terminating July 31, 1972. It contained ten automatic one-year renewal options
[ 20 Pa. Commw. Page 540]
which were considered as having been exercised unless Exxon gave written notice to the contrary thirty days before the expiration of the period then in effect. Pertinent to this case is paragraph 11 of that lease, which reads as follows:
"(11) If the demised premises or any part thereof shall be taken by or pursuant to governmental authority or through exercise of the right of eminent domain, or if a part only of said premises is taken and the balance of said premises in the opinion of Lessee is not suitable for the operation of a drive-in gasoline service station, this lease, at the option of Lessee, shall terminate without further liability on the part of Lessee, or the rent hereunder shall be reduced in proportion to the reduction in the area of the premises, but nothing herein shall be deemed a waiver of the sole right of Lessee to any award for damages to it or to its leasehold interest caused by such taking, whether made separately or as part of a general award."
Without any formal declaration of taking filed by the Pennsylvania Department of Transportation (PennDOT), it erected, on or about November 6, 1972, a curb and fence on or immediately adjoining Hershey's property. The erection of the curb and fence completely denied all access to and from one of the public streets abutting the subject property. As part of PennDOT's plan, another abutting street is to be closed, landlocking the property. Exxon vacated the premises on January 4, 1970, almost three years prior to the construction by PennDOT, but Exxon continued to pay the rent through November of 1972. Exxon, by a letter dated December 14, 1972, informed Hershey that no further rent would be paid. ...