35 Pa. Commw. 193 | Pa. Commw. Ct. | 1978
Opinion by
This is an appeal from an order of the Northampton County Court of Common Pleas which, sitting en banc, affirmed a trial court’s award of $6,400 in business dislocation damages to appellee pursuant to Section 601-A(b) (3) of the Eminent Domain Code (Code), 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, as mnended, 26 P.S. §l-601A(b) (3). We must reverse. • . ..
In August 1975, a board of view (board) denied appellee business dislocation damages under Section 601-A(b)(3) on the ground that the business had not suffered the requisite “substantial loss of its existing patronage” upon relocation. The board further denied dislocation damages under Section 603-A of the Code, 26 P.S. §1-603A, because appellee was a business tenant as opposed to a dwelling tenant, and awarded counsel fees of $500 to appellee pursuant to Section 610 of the Code, 26 P.S. §1-610. After considering testimony and exhibits relating to the financial condition of the business during the calendar years 1971,1972 and 1973, the trial court, sitting without a jury, concluded that a substantial loss of existing patronage had occurred. It awarded appellee $6,-400, equivalent to 40 times the actual monthly rental, the standard of damages which yielded the greater recovery to appellee as prescribed by Section 601-A(b) (3). The trial court denied damages under Section 603-A and awarded $500 counsel fees under Section 610. The common pleas court sitting en banc affirmed the trial court.
The only question presented on this appeal is whether the court below erred in its decision that dislocation damages were warranted in this case.
In the ease of a business which relocates, loss of existing patronage shall be determined by comparing the average net earnings at the new location during a period of at least six months with the average net earnings- during the two taxable years immediately preceding the taxable year in which the business is dislocated, or the applicable period provided for in paragraph (6) of this subsection. (Emphasis added.)
Thus the period relevant here for comparison with pre-dislocation years in the determination of whether a substantial loss of existing patronage occurred is not the calendar year 1973 (during which appellee operated the business at both the new and old locations), but rather a period of at least six months at the new location, beginning in May 1973. Since the facts show unquestionably that during such period of at least six months at the new location the business enjoyed a substantia] increase in net earnings, we must reverse the awarding of business dislocation damages by the court below.
Accordingly, we will enter the following
Order
Now, May 8, 1978, the order of the Northampton County Court of Common Pleas, No. 33 April Term,
Appellee’s cross-appeal, alleging that the court below erred in restricting counsel fees to $500 pursuant to Section 610 of the Code, was consolidated for argument with this appeal and is found at 35 Pa. Commonwealth Ct. 213, 3S6 A.2d 165 (1977).