In re Taking in Eminent Domain of Certain Parcels of Real Estate by the Redevelopment Authority

Opinion by Judge Craig, Condemnee Moninghoff appeals from the lower court’s decision denying his claim for business dislocation damages in conjunction with the condemnation of his Easton property, which included a nine unit , apartment building. The Bedevelopment Authority of Easton filed a declaration of taking, and paid estimated just compensation in the amount of $43,200 to condemnee. Viewers were appointed and filed their report on August 6, 1976 awarding condemnee general damages of $47,000, [290] but denying condemnee’s claim for business dislocation damages. Condemnee appealed tbe general damage award to tbe Court of Common Pleas where tbe jury returned a verdict of $47,000 for tbe taking, but a judge denied tbe claim for business dislocation damages, under Section 601-A(b)(3) of tbe Eminent Domain Code (Code),1 beard separately.2 Condemnee argues that be has met tbe burden of proof entitling bim to dislocation damages by presenting substantial evidence of bis inability to secure a relocation property, which in effect proves that be would necessarily suffer a substantial loss of patronage. Thus condemnee argues that tbe court erred as a matter of law by denying bim business dislocation damages. We disagree and affirm tbe lower court’s decision denying business dislocation damages. Section 601-A(b)(3), provides in pertinent part: (3) In addition to damages under clauses (1) or (2) of tbis 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 . . . (ii) tbe average annual net earnings. ... In tbe case of a business, payment shall be made under tbis subsection only if tbe business (i) cannot be relocated without a substantial loss of its existing patronage. . . . In March Brothers v. Redevelopment Authority of Philadelphia, 20 Pa. Commonwealth Ct. 212, 215, 342 A.2d 131, 133 (1975) tbis court held that Section 601-A(b)(3) requires tbe condemnee to prove that “its business was of such a character that it could not be [291] moved to another location without a substantial loss of existing patronage.” (Emphasis added.) In March Brothers, supra, we granted condemnee business dislocation damages relying on the following facts: (1) Condemnee, after a four-month search, could not find a replacement property which could be adapted to the specifications of condemnee’s specialized equipment, and further, (2) the nature of the business there was such that it subsisted on wholesale restaurant food supply outlets in the plant’s immediate vicinity. What the evidence introduced by this condemnee tends to prove is that a single nine-unit apartment building was not available as a relocation property, and that, although there were apartments available in the Easton area which, in the aggregate, could have provided nine rental units, these separate units could not be purchased for the amount of the condemnation award.3 However, the business dislocation damage provision of the Code was not intended to serve as a supplement to an insufficient compensation award. As Judge Wilkinson pointed out in Appeal of Brennan, 30 Pa. Commonwealth Ct. 58, 372 A.2d 1240 (1977) where the only loss suffered by the condemnee was “specific, individual customers,” or “patrons,” that does not amount to the “substantial loss of existing patronage” which would in turn entitle condemnee to business dislocation damages provided by the Code. Condemnee’s inability to relocate his “business” because of the non-existence of a matching replace [292] ment rental property is not proof of inability to relocate without .substantial loss of patronage due to the local character of his business. Because condemnee has failed to carry his burden of . proof regarding the element of “substantial loss of patronage,” he is not entitled to business dislocation damages. We therefore affirm the lower court’s decision. Order And Now, this 2nd day of February, 1979, the order of the Court of Common Pleas, Northampton County, No. 33 October Term, 1975, Civil Division, is affirmed. Footnotes [1] Act of June 22, 1964, Special Sess., P.L. 84, as amended, added by Section 8 of the Act of December 29, 1971 P.L. 640, 26 P.S. §1-601-A(b) (3). [2] The case was first tried on May 9, 1977 but resulted in a mistrial. Retrial occurred in October of 1977. [3] Testimony from Irving R. Houseworth, Mr. Moninghoff’s nephew, and informal manager of the condemnee’s three rental properties, indicated that, after calling a dozen realtors, the largest apartment available, for the price of $54,900, had six rental units. A number of smaller buildings, including three three-unit buildings, were for sale.