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RICHARD P. BECKER AND MARGARET P. BECKER v. REDEVELOPMENT AUTHORITY LUZERNE COUNTY (04/26/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 26, 1982.

RICHARD P. BECKER AND MARGARET P. BECKER, APPELLANTS
v.
REDEVELOPMENT AUTHORITY OF LUZERNE COUNTY, PA., APPELLEE

Appeal from the Order of the Court of Common Pleas of Luzerne County in the case of Richard P. Becker and Margaret H. Becker, his wife v. Redevelopment Authority of Luzerne County, Pa., No. 1371 of 1975.

COUNSEL

Richard P. Becker and Margaret P. Becker, appellants, for themselves.

Malcolm M. Limongelli, for appellee.

Judges Rogers, Blatt and Williams, Jr., sitting as a panel of three. This decision was reached prior to the resignation of Judge Mencer. Judge Palladino did not participate in the decision in this case.

Author: Per Curiam

[ 66 Pa. Commw. Page 295]

This appeal involves the condemnation of a two-story frame building held by the appellants, Richard P. and Margaret P. Becker, for investment purposes, all four of its apartments being leased to third party tenants at the time of condemnation.

[ 66 Pa. Commw. Page 296]

At a trial on an appeal from the award of a board of viewers in the Court of Common Pleas of Luzerne County on January 27, 1976, a jury entered a verdict for the appellants in the amount of $25,500.00 general damages to compensate them for the fair market value of their property which was condemned. The parties stipulated at this trial that the question of whether or not the appellants were entitled to dislocation damages under Section 601-A(b)(3) of the Eminent Domain Code*fn1 was to be left to the trial judge, and he decided to award an additional $6,500.00 to the appellants. On February 2, 1976, the appellee Redevelopment Authority of Luzerne County (Authority), requested that the court below grant it a new trial in order to challenge only*fn2 the award of $6,500.00 to the appellants for dislocation damages, arguing that the court erred as a matter of law. This motion was granted in an order docketed on February 2, 1976, and the Authority subsequently lodged it with the prothonotary of the court below on March 23, 1978*fn3 in order to set a date for trial.

The court below, believing that the granting of a new trial would serve no purpose other than to further

[ 66 Pa. Commw. Page 297]

    delay this already protracted proceeding, rendered a decision*fn4 on December 19, 1980, allowing the general damages but setting aside the trial judge's dislocation damage award of $6,500.00 to the appellants on the basis of our Supreme Court's decision in Redevelopment Authority of Allegheny County v. Stepanik, 479 Pa. 199, 387 A.2d 1292 (1978).

From what we are able to glean from the appellants' brief, they argue here that the court below committed an error of law in denying them dislocation damages, that the Authority failed to timely file its motion for a new trial, that the court below, therefore, entertained an "invalid appeal" or abused its discretion in allowing the new trial, and that the record file of this case was tampered with.

Concerning the appellants' first contention, our Supreme Court in Stepanik, has stated that the legislature did not intend that a condemnee who owned, but did not occupy, a residential apartment building and who rented that apartment to others for living space, should receive special dislocation damages under Section 601-A(b)(3) of the Code which permits benefits

[ 66 Pa. Commw. Page 298]

    to "displaced persons." The rationale for this rule is to prevent double recovery, inasmuch as the owner-condemnee would have "already received compensation for rental income through the award of general damages," for general damages are based on the fair market value of the premises which itself reflects the present value of anticipated future rental income. Id. at 203, 387 A.2d at 1294.

Here, it is undisputed that the appellants were not occupants of the premises and consequently, under Stepanik, it is clear that they are not displaced persons eligible for damages under Section 601-A(b)(3) of the Code. We believe, therefore, that the court below correctly found them ineligible for such damages.

The contention of these appellants that the Authority was not timely in its motion for a new trial is without merit. The record discloses that on February 2, 1976, which was within ten days after the date of the original verdict, the Authority requested and the court below granted*fn5 and filed their motion for a new trial.

Regarding the final contention of the appellants, their self-serving allegations in their petition and brief as to alleged illegal tampering with the record file, are, without more, insufficient for us to conclude that tampering actually occurred.

Finding no error of law or abuse of discretion,*fn6 we will therefore affirm the order of the court below.

[ 66 Pa. Commw. Page 299]

Per Curiam Order

And Now, this 26th day of April, 1982, the order of the Court of Common Pleas of Luzerne County in the above-captioned matter is hereby affirmed.

This decision was reached prior to the resignation of Judge Mencer.

Judge Palladino did not participate in the decision in this case.

Disposition

Affirmed.


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