Appeal from the Order of the Court of Common Pleas of Montgomery County in case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation of Right of Way for Legislative Route 326, Section 4R/W in Abington Township and the Borough of Rockledge. Edward & Mary Neumann (Owners), John & Ida Brennan (Tenants) v. Commonwealth of Pennsylvania, Department of Transportation, No. 74-1345.
George O'Connell, with him John W. Lauffer, and Barbin, Lauffer & O'Connell, for appellants.
William P. Culp, Jr., Special 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 Wilkinson, Jr.
Appellants appeal the order of the Montgomery County Court of Common Pleas denying their motion to take off a non-suit entered by the court as to their claims for business dislocation damages and expenses
incident to the acquisition of relocation property pursuant to Section 601-A(b)(3) and former Section 616, respectively, of the Eminent Domain Code (Code).*fn1 We affirm.
On or about December 31, 1969, appellants became lessees*fn2 of two adjoining properties located at the intersection of a state highway and local road in Montgomery County. Appellants were engaged in the retail sale of fruit, produce and miscellaneous related items and conducted this business in a single-story wood frame building on the premises. The building was appellants' only sales outlet and was operated primarily by them with only occasional part-time help.
On November 4, 1971, appellee filed a declaration of taking, condemning the premises on which the building was located. Appellants vacated the premises sometime in October or November 1972 (prior to the termination of the lease) and purchased a site several miles from the condemned premises. There they established a retail food market with expanded facilities, employment and types of available items.
Appellants petitioned for appointment of a board of view in January 1974. The board awarded them $2,376.00 as stipulated moving expenses and $3,800.00 in business dislocation damages. Appellee appealed. At a non-jury trial, appellants attempted to prove the "substantial loss of existing patronage" required for business dislocation damages under Section 601-A(b)(3) by offering testimony that up to seventy per
cent of the business at the former location was from regular customers from within a one-mile radius and that such customers do not visit the new store. This testimony was uncontradicted by the appellee. However, appellee introduced, over objection, tax returns of the business showing that its net profit for 1973, its first full taxable year at the new location, was $9,137.00 as compared to net profits of $4,002.22 and $6,889.00 for 1970 and 1971 respectively, the two taxable years immediately preceding the taxable year in which dislocation occurred. Appellee then moved for a non-suit as to appellants' claims for business dislocation damages and expenses incidental to the acquisition of relocation property. The lower court entered an order awarding appellants verdicts in the amount of the stipulated moving expenses and $500.00 in stipulated counsel fees but sustaining appellee's motions for non-suit. Appellants' motion to take off the non-suit was denied by the court after argument en banc. The court held that there can be no recovery for business dislocation without a showing of both loss of patronage and actual loss, and since appellants had shown no actual loss the non-suit as to ...