Appeal from the Order of the Court of Common Pleas of Luzerne County in case of Redevelopment Authority of the City of Nanticoke v. Theodore G. Spencer, Anna A. Spencer, his wife, and Theodore G. Spencer, Trading and Doing Business as Ted Spencer & Sons Auto Service Center, No. 272 of 1974.
Philip F. Hudock, with him Robert P. Hudock, and Hudock and Hudock, for appellants.
Donald D. McFadden, with him Flanagan, Doran, Biscontini & Shaffer, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Mencer, Rogers and Blatt. Judges Kramer and Wilkinson, Jr. did not participate. Opinion by President Judge Bowman.
In this appeal by property owners, Theodore G. Spencer and wife, they assert the lower court erred as a matter of law in its disposition on the merits of several issues raised by their preliminary objections to the declaration of taking of their property by the Redevelopment Authority of the City of Nanticoke. They also insist it likewise
erred in concluding that other issues so raised concerning the measure of damages to be applied in arriving at just compensation were not within the permissible scope of preliminary objections under Section 406 of the Eminent Domain Code, Act of June 22, 1964, Spec. Sess., P.L. 84, as amended, 26 P.S. § 1-406.
Having considered the issues raised in this appeal which were decided by the lower court on their merits we affirm its order as to these issues and adopt its opinion in support thereof. The record rebukes appellants' contentions that the taking in question was for a private rather than a public purpose and appellants wholly failed to establish that the governmental authorities acted illegally, arbitrarily or capriciously in planning, certifying and approving the flood project in question. The principles of law applicable to the resolution of such issues have again been reviewed and restated in our recent decision in Moyer Eminent Domain Appeal, 22 Pa. Commonwealth Ct. 487, 349 A.2d 781 (1976).
Considering other issues raised by appellants' preliminary objections dismissed for procedural reasons by the lower court, the record discloses the following background facts. Appellants are the fee owners of 2.526 acres of land in the Lower Broadway area of Nanticoke on which there is operated a junk yard and a new and used auto parts business. This property is within the boundaries of an urban renewal project known as the Lower Broadway Disaster Urban Renewal Area having been declared a blighted area after devastation by the flood associated with Hurricane Agnes. The plan calls for total clearance of all structures, residential and nonresidential, within the area.*fn1
The first of these issues attacks Section 601-A(b)(3) of the Code, 26 P.S. § 1-601A, as unconstitutional and void in limiting business relocation damages to a maximum amount of $10,000. Appellants argue that such a limitation permits a taking of property without just compensation. Relying upon our opinion in Hegedic v. Department of Transportation, 8 Pa. Commonwealth Ct. 551, 304 A.2d 181 (1973), the lower court concluded that this issue, being essentially one of damages, was not cognizable by way of preliminary objections to a declaration of taking.
We agree that this issue, framed in constitutional terms or otherwise, was improperly raised under Section 406 of the Code. We would further observe that the inability to relocate one's business taken in condemnation cannot vitiate or negate the power of condemnation otherwise enjoyed by the Authority nor does the cost of such relocation, if relocation is possible, enlarge one's constitutional entitlement to just compensation. See Sgarlat Estate v. Commonwealth, 398 Pa. 406, 158 A.2d 541, cert. denied, 364 U.S. 817 (1960). Appellants' argument is singularly lacking in citation of any authority, Federal or State, that the cost of relocating a business is an element of damages in ascertaining just compensation constitutionally required to be paid under the power of eminent domain. That the legislature has ...