Appeal, No. 880 C.D. 1975 | Pa. Commw. Ct. | Jun 15, 1976
Opinion by
This is an appeal from an order of the Court of Common Pleas of Allegheny County affirming a report of a board of viewers which awarded appellee business dislocation damages in the amount of $10,-000.00. We reverse.
In 1973, appellant condemned property owned and operated by appellee as a residential apartment building. Following an initial hearing before a board of viewers and a report thereon awarding appellee general damages, which was not contested by either party, a second hearing was held dealing with business dislocation damages under Section 601-A(b) (3) of the Eminent Domain Code (Code), Act of June 22,1964, Special Sess., P.L. 84, as amended, 26 P.S. §l-601A(b) (3). At the second hearing, the parties stipulated to all relevant facts including the fair monthly rental value of the condemned property — not less than $250.00 — and the average annual net earnings received by appellee from the operation of the premises as an apartment building — less than $2,500.00. The sole issue before the board was the validity of Section 103.4(d) of the
Section 103.4(d) of tbe Regulations provides: “ (d) In tbe case of a business conducted primarily for the lease or rental of real property, payment under [Section 601-A of tbe] Code subsection (b)(3) shall be limited to tbe average annual net earnings (subparagraph (ii)).”
The Board held Section 103.4(d) to be invalid, finding that tbe regulation conflicted with Section 601-A(b) (3) of tbe Code and filed a report awarding appellee $10,000.00, tbe maximum amount of additional business dislocation damages allowable by tbe Code. Appellant appealed to tbe lower court contending that Section 103.4(d) is consistent, rather than in conflict, with Section 601-A(b)(3) and that tbe correct amount of damages should be $2,500.00.
Section 601-A(b)(3) of tbe Code, 26 P.S. §1-601A (b) (3), provides, in material part:
“ (b) Any displaced person who is displaced from bis place of business
“(3) Iu addition to damages under clauses (1) or (2) of this 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 either (i) forty times the actual monthly rental, in the case of a tenant, or forty times the fair monthly rental value, in the case of owner-occupancy; or (ii) the average annual net earnings, whichever is greater.” (Emphasis added.) (Footnote ours.)
Appellant argued that Section 601-A(b) (3) classifies displaced persons entitled to additional business dislocation damages thereunder into three groups: (1) tenants, (2) owner-occupants, and (3) persons not within the ambit of either (1) or (2). Appellant asserted that owners of real property conducting businesses primarily for the lease or rental of such property are neither tenants nor owner-occupants of the realty but fall within group (3). Therefore, appellant concluded that the computation of damages to such persons under Section 601-A(b)(3) is limited by the very terms of that section to average annual net earnings under subparagraph (ii).
The lower court denied appellant’s arguments and affirmed the board of viewers. The court held that absent clear statutory language to the contrary, the entire thrust of Section 601-A(b) (3) is to provide persons conducting all types of businesses which are displaced with the complete set of computation options provided by both subparagraphs (i) and (ii). Finding no language indicating a legislative intent to limit the calculation of damages to displaced owners who conduct businesses primarily Cor the lease or rental of their real property to average annual net earnings under subparagraph (ii), the court ruled that such
Appellant is now before this Court raising the same arguments it did below. We agree with appellant’s position. The lower court and the courts it followed completely ignore the word “occupancy” in the compound term “owner-occupancy” in subparagraph (i), contrary to the principle that every statute is to be construed to give effect to all of its provisions. Section 1921(a) of the Statutory Construction Act of 1972, 1 Pa. C.S. §1921(a).
It is clear that an owner who conducts a business primarily for the lease or rental of his real property is not an “occupant” of such property. “Occupant” is defined as ‘ ‘ one who has the actual use, possession or control of a thing.” Blade’s Law Dictionary 1230 (4th ed. rev. 1968). (Emphasis added.) “Occupancy,” with respect to realty, is defined variously as actual possession or the “act of talcing and holding possession.” Id. 1229. (Emphasis added.) Therefore, “occupancy” requires more than the mere right to possess or control property — the right to possess or control must actually be exercised. Thus, while an owner who conducts a business primarily for the lease or rental of his real property may have the right to possess or control the leased premises, he does not have the actual possession or control to be an owner-occupant.
This regulation has since been amended. It is codified at 37 Pa. Code §151.4(iv) and presently provides: “(iv) To he eligible for payment under Subsection (b) (3) (i) of the Act (26 P.S. §l-601A(b) (3) (i)) a business must occupy the premises from which it is displaced. Thus, in the case of the business of leasing or renting real property conducted by a person who does not occupy any part of the premises, payment under Subsection (b) (3) of the Act (26 P.S. §l-601A(b) (3)) shall be limited to the average annual net earnings of the real property (Subsection (b) (3) (ii)).”
There was some contention at argument whether a person who leases or rents realty to others “is displaced from his place of business” by the condemnation of such property. However, this issue was not raised below and is not before this Court.