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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA v. COMMONWEALTH PENNSYLVANIA (11/21/78)

decided: November 21, 1978.

IN RE: CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, OF RIGHT OF WAY FOR LEGISLATIVE ROUTE 1084, SEC. A10 R/W, DEED BOOK 95, PAGE 69, CLAIM NO. 5400785. MARJORIE M. FETTER (NOW KNOWN AS MARJORIE M. SASSAMAN), OWNER AND HAWK SALES CO., INC., TENANT AND LESSEE
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION. HAWK SALES COMPANY, INC., APPELLANT



Appeal from the Order of the Court of Common Pleas, 17th Judicial District, Snyder County Branch in case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation of Right of Way for Legislative Route 1084, Section A10 Claim No. 5400785; Hawk Sales Company, Inc. (Lessee on Property of Marjorie M. Fetter, now known as Marjorie M. Sassaman) v. Commonwealth of Pennsylvania, Department of Transportation, No. 356, 1973.

COUNSEL

William S. Kieser, with him Kieser and Gahr, for appellant.

Charles A. Buechel, Jr., Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General-Chief Counsel, and Robert P. Kane, Attorney General, for appellee.

President Judge Bowman and Judges Wilkinson, Jr., Mencer, Rogers, Blatt, DiSalle and MacPhail. Judges Crumlish, Jr. and Craig did not participate. Opinion by Judge DiSalle. Dissenting Opinion by Judge Wilkinson, Jr. Judge MacPhail joins.

Author: Disalle

[ 38 Pa. Commw. Page 537]

Presently before this Court is the appeal of Hawk Sales Company (Lessee) from an order of the Court of Common Pleas of Snyder County which confirmed both a board of view's award of damages to Marjorie Fetter Sassaman (Landowner) and the board's denial of damages to Lessee for the taking of a portion of Landowner's property. Lessee contends that it is entitled to share in the award of general damages to Landowner and to receive further damages occasioned by the dislocation of its business enterprise.

On July 27, 1973, the Department of Transportation (PennDOT) filed a declaration of taking for land

[ 38 Pa. Commw. Page 538]

    which the Lessee had leased from Landowner. Lessee filed a petition for appointment of a board of view. The board of view conducted two separate hearings: the first dealt with whether the Lessee was entitled to business dislocation damages within the meaning of Section 601-A(b)(3) of the Eminent Domain Code (Code),*fn1 and whether the limitation on such damages was constitutional; the second hearing dealt with whether PennDOT should be assessed general damages for condemnation of the subject property pursuant to Section 407 of the Code, 26 P.S. § 1-407, and, if so, whether the Lessee is entitled to some portion thereof as provided by Section 507 of the Code, 26 P.S. § 1-507.

As to the first hearing, the board of view found in its report dated November 25, 1974, that Lessee was not eligible for business dislocation damages since it had several other related commercial establishments in the area which were not subject to condemnation. Having found Lessee ineligible for such damages, the board did not consider the constitutional challenge to the limitation of damages. With respect to the second hearing, the board of view filed a report on March 24, 1976, in which it assessed substantial damages against PennDOT for the Landowner's benefit but refused to apportion such damages between Landowner and Lessee. The board of view reasoned that a specific provision of the lease automatically terminated the Lessee's leasehold interest at the time of the taking and that Lessee, therefore, had no compensable interest. PennDOT and Lessee appealed these decisions to the court of common pleas.

The court of common pleas confirmed the board's determinations. The court found that the Lessee was

[ 38 Pa. Commw. Page 539]

    ineligible for business dislocation damages since it did not meet the requirements of Section 601-A(b)(3).*fn2 The relevant findings of fact indicate that Lessee owned at least three other commercial establishments within close proximity to the condemned property and that none of these properties had been condemned. With regard to the question of general damages, the court found that a specific lease provision terminated Lessee's leasehold ...


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