8 Pa. Commw. 366 | Pa. Commw. Ct. | 1973
Opinion by
The Redevelopment Authority of the City of Philadelphia here appeals a judgment entered against it in a condemnation case tried below by a judge without a jury-
The parties, before any litigation, settled on a list of machinery, equipment and fixtures in the premises belonging to the Liebermans for the taking of which they were entitled to compensation by Section 603(3) of the Eminent Domain Code, Act of June 22, 1964, P. L. 84, 26 P.S. §1-603(3). The proceedings below were informal in the extreme and more nearly resembled settlement negotiations than a trial of the issues. It is nevertheless clear that the Liebermans did not claim damages for the destruction of their leasehold. Nor, under Pennsylvania law were they entitled to such in the presence of the provision of the lease effecting its termination upon condemnation. Scholl’s Appeal, 292 Pa. 262, 141 A. 44 (1928). It is equally clear that the Liebermans did, however, from the outset claim compensation for injury to their liquor license and for business dislocation damages.
At the trial, the Liebermans’ only witness was Irwin Lieberman. He testified as to his opinion of the value not only of the machinery, equipment and fixtures but also, over objection, of the liquor license, which latter he stated was worth $35,000 to $40,000 before condemnation but was valueless thereafter because
The Authority’s evidence consisted only of an expert’s testimony as to the value of the machinery, equipment and fixtures.
The trial judge awarded the condemnees the total sum of $40,000, of which $35,000 was for “all elements” except business dislocation and $5,000 for business dislocation damages. The “elements” considered by the court to be compensable were the liquor license and the “going concern value of the business,” in discussing which the judge made a calculation of the value of the business by capitalizing the net profits. The amount of the award for business dislocation damages was arrived at by multiplying the monthly rental of $300 by 24 months.
The principal issues of the case are whether the liquor license was compensable and what amount, if any, of business location damages the Liebermans are entitled to.
As regards the license, the condemnees and the court below principally rely on Feitz Estate, 402 Pa. 437, 167 A. 2d 504 (1961). That case held that the statutory right to apply, after death, for the transfer of a liquor license owned by a decedent at the time of death was subject to inclusion as part of the decedent’s estate taxable for inheritance tax purposes. It follows, the appellees argue, that the liquor license is a property in
The Court also erred in considering business profits. Old and firmly established case law prohibits such consideration
The offers to purchase were also not admissible and should not have been considered by the court. Saunders v. Commonwealth, 345 Pa. 423, 29 A. 2d 62 (1942).
Section 609, 26 P.S. §1-609, of the Code provides business dislocation damages as follows: “The condemnee shall be entitled to damages, as provided in this section, for dislocation of a business located on the condemned property, but only where it is shown that the business cannot be relocated without substantial loss of patronage. Compensation for such dislocation shall be the actual monthly rental paid for the business premises, or if there is no lease, the fair rental value of the business premises, multiplied by the number of months remaining in the lease, not including unexercised options, not to exceed twenty-four months or multiplied by twenty-four if there is no lease. The amount of such compensation paid shall not exceed five thousand dollars ($5000) and shall not be less than two hundred fifty dollars ($250). A tenant shall be entitled to recover for such business dislocation even though not entitled to any of the proceeds of the condemnation.” Although the Liebermans’ lease had, immediately prior to a condemnation, a remaining term of only nine months, the court below awarded damages based on twenty-four months. This was clear error in the face of the limitation of damages in such case to the number of months remaining in the lease. The Redevelopment Authority contends that there should be no damages awarded for this cause because the lease was terminated by operation of the condemnation clause. We disagree. The meaning of the clause is to
From what date here is the remaining term to be measured? In Lectronics Distributors, Inc. v. Redevelopment Authority of Philadelphia, 217 Pa. Superior Ct. 310, 272 A. 2d 208 (1970), it was held that a tenant who remained in occupancy following condemnation and until a time after the expiration of the term of his lease was entitled to nothing under Section 609 because his peaceful possession was not disturbed during the term. Consistently, the Liebermans are not entitled to damages on this account until their eviction on June 1, 1969. The remaining term of their lease from that date was five months and they are entitled to dislocation damages measured by the product of this number of months and the monthly rent.
The judgment is vacated and the record remanded for a new trial.
Tahiti Bar, Inc. Liquor License Case, 186 Pa. Superior Ct. 214, 142 A. 2d 491 (1958). In Cavanaugh et al. v. Gelder et al., 364 Pa. 361, 364, 72 A. 2d 85 (1950), our Supreme Court approved the following statements: “ ‘A liquor license, even when granted, is not a property right; it is only a privilege. ... It may be taken away by the governing authorities without compensation to the holder.’ ”
Schuylkill Navigation Co. v. Thoburn, 7 S. & R. 410 (1821). Sglarlat Estate v. Commonwealth, 398 Pa, 406, 158 A. 2d 541 (1960).