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CONDEMNATION BY URBAN REDEVELOPMENT AUTHORITY CITY PITTSBURGH ETC. MORRIS BENKOVITZ v. MORRIS BENKOVITZ (12/02/82)

decided: December 2, 1982.

IN RE: CONDEMNATION BY THE URBAN REDEVELOPMENT AUTHORITY OF THE CITY OF PITTSBURGH ETC. MORRIS BENKOVITZ, APPELLANT. IN RE: CONDEMNATION BY THE URBAN REDEVELOPMENT AUTHORITY OF THE CITY OF PITTSBURGH ETC. URBAN REDEVELOPMENT AUTHORITY OF PITTSBURGH, APPELLANT
v.
MORRIS BENKOVITZ, APPELLEE



Appeals from the Order of the Court of Common Pleas of Allegheny County in case of In Re: Condemnation of the Urban Redevelopment Authority of the City of Pittsburgh: Centre Avenue in the Third Ward of the City of Pittsburgh, Allegheny County, Pennsylvania -- Morris Benkovitz v. Urban Redevelopment Authority of the City of Pittsburgh, No. 1162 January Term, 1975.

COUNSEL

Benjamin B. Wechsler, II, with him Elliott W. Finkel, Kaplan, Finkel, Lefkowitz and Ostrow, for appellant, Morris Benkovitz.

Marion E. Popiel, for appellee, Urban Redevelopment Authority of Pittsburgh.

President Judge Crumlish, Jr. and Judges Williams, Jr. and Doyle, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 70 Pa. Commw. Page 232]

In the instant matter, we have consolidated two separate appeals from an eminent domain order of the Court of Common Pleas of Allegheny County. The order here involved, dated March 6, 1981, decreed that the condemnee was entitled to delay compensation, or "detention damages," calculated from May 14, 1976. The same order also directed the condemnor to pay the condemnee, as a reasonable attorney fee, a sum equal to 40% of the total award for damages.

The first appeal, No. 863 C.D. 1981, is by the condemnee, Morris Benkovitz. In his appeal, Benkovitz asserts that the delay compensation should have been calculated from May 1, 1972, instead of from May 14, 1976. Benkovitz also argues that the lower court erred in not allowing him interest on part of the awarded attorney fee. The second appeal, No. 978 C.D. 1981, is by the condemnor, the Urban Redevelopment Authority of the City of Pittsburgh (Authority). The Authority's assertion of error is that the lower court, in setting the amount of the attorney fee, relied on the contingent fee agreement between the condemnee and his attorney. Benkovitz, the condemnee, has characterized the Authority's appeal as being frivolous, and would have us impose sanctions under Pa. R.A.P. 2744.

Background

Morris Benkovitz owned three contiguous buildings located at 1808, 1810 and 1812 Centre Avenue in the City of Pittsburgh. The three buildings were used as a single economic entity, a wholesale and retail seafood business. In 1969, the City of Pittsburgh approved a neighborhood renewal plan for the area in which the Benkovitz property was located. In the few

[ 70 Pa. Commw. Page 233]

    years that followed the approval of the renewal plan, the Authority acquired and domolished buildings near Benkovitz's property, but did not acquire his. However, because of the impact of the renewal project, the seafood business conducted on Benkovitz's property ceased to be profitable by the spring of 1972.

For more than two years following the spring of 1972, the seafood business was operated at a loss, and was unable to generate enough income to meet the taxes, insurance and maintenance expenses on the property. During that period, Benkovitz sought to sell or lease the property, but without success. In September 1974, he closed the premises to avoid further losses. On October 31, 1974, Benkovitz filed a petition for the appointment of viewers, under Section 502(e) of the Eminent Domain Code (Code),*fn1 alleging that a de facto taking of his property had occurred as of May 1, 1972.

On February 11, 1976, the Court of Common Pleas of Allegheny County dismissed the Authority's preliminary objections to the appointment of viewers. The court adjudged that Benkovitz had suffered a de facto taking on May 1, 1972, as he had alleged. Accordingly, the court's order directed the viewers to proceed with the determination of damages.*fn2 On ...


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