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BANKS BROTHERS v. COMMONWEALTH PENNSYLVANIA (06/04/84)

decided: June 4, 1984.

BANKS BROTHERS, INC., APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Banks Brothers, Inc. v. Commonwealth of Pennsylvania, Department of Transportation, No. 4487 May Term, 1978.

COUNSEL

Herman Blumenthal, for appellant.

Thomas J. Hines, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellee.

Judges Rogers, Craig and Barry, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 83 Pa. Commw. Page 38]

Banks Brothers, Inc. appeals an order of the Court of Common Pleas of Philadelphia County, which denied its motions for judgment notwithstanding the verdict and new trial following the grant of defendant Pennsylvania Department of Transportation's motion for directed verdict in an action under the Eminent Domain Code.*fn1

We must determine whether the company has a right, under the Code, to personal property loss damages

[ 83 Pa. Commw. Page 39]

    in addition to those already paid by DOT for relocation expenses, and if so, whether the company waived that right by signing a general release of all claims.

In 1973, Banks Brothers was operating a machine manufacturing shop in a building it rented from Dieffenbach and Company at 816-818 New Market Street in Philadelphia. In connection with the ongoing construction of Interstate 95, DOT excavated New Market Street in January, 1973, blocking the entrance to the shop and closing off access to New Market Street altogether. DOT has stipulated that Banks Brothers is a "displaced person" entitled to damages under the Eminent Domain Code but disputes the type and extent of those damages.

Within two or three months after the start of the excavation, Banks Brothers had sold all of the machinery located within its rented premises. Mr. Banks, the president of the corporation, has no receipts for those sales, nor could he say how much of the machinery he sold intact and how much for scrap. However, he estimated the total amount received at $20,000. Banks Brothers filed a claim with DOT seeking to recover the difference between that amount and the value of the machinery in place at the time of taking. DOT's contractors estimated the cost to move Banks Brothers' equipment and reinstall it in another location at $20,775, and in July, 1974, DOT and Banks Brothers executed an agreement to reimburse the company to that extent.

In September, 1974, Mr. Banks went to the Philadelphia office of DOT and received a check in the agreed amount after he and his brother, the secretary-treasurer of the corporation, signed a general release at DOT's request. The Banks brothers claimed they did not know they were signing a ...


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