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MATTER REDEVELOPMENT AUTHORITY CITY PHILADELPHIA v. PREMISES 2250-52 EAST AUBURN ST. (05/12/76)

decided: May 12, 1976.

IN THE MATTER OF THE REDEVELOPMENT AUTHORITY OF THE CITY OF PHILADELPHIA, URBAN RENEWAL AREA
v.
PREMISES: 2250-52 EAST AUBURN ST., PHILADELPHIA, PA. CLAIM OF: DOUGLAS WASTE PAPER COMPANY. REDEVELOPMENT AUTHORITY OF THE CITY OF PHILADELPHIA, APPELLANT



Appeal from the Order of the Court of Common Pleas of Philadelphia County, in case of In the Matter of the Redevelopment Authority of the City of Philadelphia, Urban Renewal Area. Claim of: Douglas Waste Paper Company, No. 1151 February Term, 1971.

COUNSEL

Dennis L. Friedman, with him Peter A. Galante, for appellant.

Leon W. Silverman, with him Stein & Silverman, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson. Judge Kramer did not participate in the decision in this case.

Author: Wilkinson

[ 24 Pa. Commw. Page 608]

Must a person be displaced in order to be a "displaced person" to recover damages for business dislocation in an eminent domain action? It would seem simple enough to find the answer by turning to Section 201 of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. ยง 1-201, and look to subparagraph (8), wherein "displaced person" is defined:

"'Displaced person' means any condemnee or other person not illegally in occupancy of real property who moves or moves his personal property as a result of the acquisition for a program or project of such real property, in whole or in part, or as the result of written notice from the acquiring agency of intent to acquire or order to vacate such real property; . . . ."

Although complete enough at first blush, the confusion as it relates to our problem is whether for all purposes a condemnee, in possession at the time of taking, is a displaced person entitled to business dislocation damages, or must he have moved as a result of the acquisition or as a result of written notice of intent to acquire or order to vacate.

The lower court held that the condemnee need not have moved and that such limitation applied only to an "other person not illegally in occupancy." We must reverse and hold that the limitation as to moving as a result of the acquisition applies equally to a condemnee as well as to an "other person not illegally in occupancy."

The stipulated facts in the instant case pose the problem squarely. The condemnee's property was taken by appellant on February 8, 1971. The condemnee remained

[ 24 Pa. Commw. Page 609]

    in possession as a tenant paying rent and so continued at least until the time of the trial on February 10, 1975. The condemnee's business was developed over a 15-year period and was not only dependent on its location in this neighborhood but also on a special permit to operate here as an exception to the zoning. Although condemnee, assisted by appellant, made an effort to locate another property in the neighborhood, properly zoned and within his price range, he was unable to do so. If and when the condemnee's present lease from appellant is terminated, he will have no choice but to go out of business.

The jury returned a verdict of $30,000.00 for the real estate, $10,000.00 for the machinery and equipment, and $10,000.00 ...


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