Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Redevelopment Authority of Allegheny County v. Mary J. Stepanik, No. 3452 January Term, 1973.
P. Ronald Cooper, for appellant.
Leonard M. Mendelson, with him Hollingshead and Mendelson, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by Judge Wilkinson.
[ 25 Pa. Commw. Page 181]
This is an appeal from an order of the Court of Common Pleas of Allegheny County affirming a report of a board of viewers which awarded appellee business dislocation damages in the amount of $10,000.00. We reverse.
In 1973, appellant condemned property owned and operated by appellee as a residential apartment building. Following an initial hearing before a board of viewers and a report thereon awarding appellee general damages, which was not contested by either party, a second hearing was held dealing with business dislocation damages under Section 601-A(b)(3) of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-601A(b)(3). At the second hearing, the parties stipulated to all relevant facts including the fair monthly rental value of the condemned property -- not less than $250.00 -- and the average annual net earnings received by appellee from the operation of the premises as an apartment building -- less than $2,500.00. The sole issue before the board was the validity of Section 103.4(d) of the
[ 25 Pa. Commw. Page 182]
Uniform Relocation Assistance Regulations (Regulations), 2 Pa. B. 1335, promulgated by the Attorney General pursuant to Section 604-A of the Code, 26 P.S. § 1-604A.
Section 103.4(d) of the Regulations provides: "(d) In the case of a business conducted primarily for the lease or rental of real property, payment under [Section 601-A of the] Code subsection (b)(3) shall be limited to the average annual net earnings (subparagraph (ii))."*fn1
The Board held Section 103.4(d) to be invalid, finding that the regulation conflicted with Section 601-A(b)(3) of the Code and filed a report awarding appellee $10,000.00, the maximum amount of additional business dislocation damages allowable by the Code. Appellant appealed to the lower court contending that Section 103.4(d) is consistent, rather than in conflict, with Section 601-A(b)(3) and that the correct amount of damages should be $2,500.00.
Section 601-A(b)(3) of the Code, 26 P.S. § 1-601A(b)(3), provides, in material part:
"(b) Any displaced person who is displaced from his place of business*fn2 or from his farm operation shall be entitled, in addition to any payment received under subsection ...