Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Regina Gaylor v. Commonwealth of Pennsylvania, Department of Transportation, No. GD 77-14547.
Michael J. Creighton, Assistant Counsel, with him Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.
William P. Bresnahan, Bresnahan & Caputo, for appellee.
Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Rogers.
The appellee Regina Gaylor owned an apartment house containing four units, one of which she occupied and the other three she rented. The appellant Pennsylvania Department of Transportation (PennDOT) took the property by eminent domain and viewers awarded Gaylor $50,600. She appealed but on the day scheduled for trial by a traverse jury the parties settled the matter of the damages for the take.
We are told by PennDOT, and this is not refuted, that Gaylor also received from PennDOT, payments provided for persons displaced from their dwellings by either Section 602-A or Section 603-A of the Eminent Domain Code.*fn1
This case is occasioned by Gaylor's claim additionally for damages provided to persons displaced from their places of business for dislocation of such businesses by Section 601-A(b)(3) of the Code which provides:
(b) Any displaced person who is displaced from his place of business or from his farm operation shall be entitled, in addition to any payment received under subsection (a) of this section, to damages for dislocation of such business or farm operation as follows:
(3) In addition to damages under clauses (1) or (2) of this subsection, damages of not more
than ten thousand dollars ($10,000) nor less than twenty-five hundred dollars ($2,500), in an amount equal to either (i) forty times the actual monthly rental, in the case of a tenant, or forty times the fair monthly rental value, in the case of the owner-occupant; or (ii) the average annual net earnings, whichever is greater.
The Attorney General, pursuant to authority conferred by Section 604-A of the Code had promulgated regulations effective during the events of this case, as follows:
To be eligible for payment under subsection (b)(3)(i) of the act (26 P.S. § 1-601-A (b)(3)(i)) a business must occupy the premises from which it is displaced. Thus, in the case of the business of leasing or renting real property conducted by a person who does not occupy any part of the premises, payment under subsection (b)(3) of the act (26 P.S. § 1-601A (b)(3)) ...