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JOSEPH M. HINDSLEY AND JOAN A. HINDSLEY v. TOWNSHIP LOWER MERION (07/13/76)

decided: July 13, 1976.

JOSEPH M. HINDSLEY AND JOAN A. HINDSLEY, CO-PARTNERS TRADING AS THE MIDWAY LOUNGE, APPELLANTS
v.
TOWNSHIP OF LOWER MERION, APPELLEE. (2 CASES)



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Joseph M. Hindsley and Joan A. Hindsley, co-partners trading as The Midway Lounge v. Township of Lower Merion, No. 74-11420.

COUNSEL

Frank M. Jackson, with him Fox, Rothschild, O'Brien & Frankel, for appellants.

Parker H. Wilson, with him Wilson, Oehrle & Drayer and Alonzo R. Horsey, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr. Judge Rogers dissents.

Author: Crumlish

[ 25 Pa. Commw. Page 456]

In this appeal we must decide what rights, if any, are conferred by the Eminent Domain Code*fn1 (Code) upon a commercial tenant in possession of property at the time it was voluntarily sold to a township where the township, after having executed a new lease with that tenant, terminated the lease at the end of its term.

This is the factual posture:

Joseph H. Hindsley and Joan A. Hindsley (Appellants) operated their business on rented premises. Lower Merion Township (Township) acquired the property from the owner under an agreement of sale dated September 16, 1971. The court below found that prior to October 4, 1973, the date of settlement, Appellants were tenants at will. After settlement, Appellants and Township entered into a six-month lease which was renewable for additional six-month periods absent notice of termination. On February

[ 25 Pa. Commw. Page 45719]

, 1974, Township notified Appellants that the lease would terminate on September 15, 1974. On August 7, 1974, Appellants filed a petition for appointment of a board of viewers, seeking to ascertain the just compensation to which they were entitled as a result of the alleged taking of the land as well as for damages under Article VI-A of the Code, 26 P.S. § 1-601A. Township filed preliminary objections to the petition contending that Appellants were neither condemnees nor were they entitled to damages under Article VI-A of the Code. The court below, after a hearing, sustained the preliminary objections. Hence this appeal.

Section 502(e) of the Code, 26 P.S. § 1-502(e), provides that:

"If there has been a compensable injury suffered and no declaration of taking therefor has been filed, a condemnee may file a petition for the appointment of viewers substantially in the form provided for in subsection (a) of ...


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