Apple Storage Co. v. School District ( 1971 )

Opinion by

Judge Rogers,

This is an eminent domain case.. Apple Storage Company, whose warehouse located in West Philadelphia was condemned by the -School District, appeals, from an order of the Court of Common Pleas of Philadelphia County awarding it a total of $260,000, ..consisting of $223,000 for real estate, $12,000 for machim ery, equipment and. fixtures, and $25,000 for .moving expenses of personal property.. The appellant contends that the court in which the case was tried by a judge sitting without a jury, erred in two. respects: first,. in: limiting its award, for moving expenses of personal property to $25,000 in the face, of evidence that appellant’s actual expense on this account was $60,000; and second, in failing to award appellant anything for business dislocation damages, assertedly despite evidence in the record of substantial loss of business due . to the. taking. . ..... ...

The trial court limited its award for .moving expenses to $25,000 in pursuance of Section 610 of the Eminent Domain Code, Act of 1964, Special Sess., June 22, P. L. 84, 26 P.S. 1-610. . When this property was condemned, §610 was as follows: “The person having legal possession shall be entitled to, as damages, the reasonable moving expenses for personal property, other than machinery, equipment.or fixtures,,. . . not to ex-. ceed twenty-five thousand dollars ($25,000) when personal property is moved from a place of business. . . . A tenant may be entitled to recover these moving expenses even though he is not entitled to any of the proceeds of the condemnation. . . .” Almost a year after this condemnation, §610 was amended so as to remove the $25,000 limitation on moving expenses by the Act of 1969, December 5, P. L. 316. However, by specific provision of §3 of that Act, the amendment to §610 and certain other sections of the Eminent Domain Code were made applicable only to condemnations undertaken after its effective date. In the face of this legislative provision that the amendment should have only prospective effect, the appellant’s contention, founded on cases construing statutes not so directing as having been iiitended to have retroactive effect, is without merit. An examination of the statutes construed in Pope v. Pennsylvania Threshermen and Farmers’ Mutual Casualty Insurance Company, 176 Pa. Superior Ct. 276, 107 A. 2d 191 (1954) and In re Malick, 137 Pa. Superior Ct. 139, 8 A. 2d 494 (1939), relied on by appellant, reveals that unlike the Act of 1969, P. L. 316, supra, they were silent on whether they were to be applied prospectively or retroactively, leaving their construction to the courts. Furthermore, neither §610 nor its amendment is curative, remedial, procedural or validating legislation as those terms are used in Pope, Malick and other cases within the narrow exception to the general rule that statutes will not be construed as applying retroactively unless a clear intention that they shall be so applied is apparent.

The personal property which the appellant was required to move was household furnishings belonging to customers stored in its condemned warehouse. Appellant argues that §610 does not apply in these circumstances ; that it is applicable only to the personal property of the owner of the real estate. The only support advanced for this contention is the note of the Joint State Government Commission declaring that “This section changes existing law by allowing the condemnee to recover as a separate and additional item his reasonable expenses for moving his personal property.” Appellant emphasizes the pronoun “his”, and argues that the Commission thus intended the Section to be applied only to the personal property of the owner of the real estate. While we may consider the comment of the Commission (Tarlo’s Estate, 315 Pa. 321, 172 A. 139 (1934)), we are not persuaded that its use of the word “his” deserves the emphasis placed upon it by the appellant. First, if accepted as determinative of legislative intent, it places the appellant here in peril of losing any compensation for moving the furniture in its warehouse, certainly an unacceptable result. Second, the same comment continues with the- statement that the purpose of the section is “to permit the recovery by the condemnee of these moving expenses in addition to-the expenses for moving machinery, equipment and fixtures as provided in §608.” Since the appellant is a. condemnee, this would suggest an intention that he should be entitled to such expenses regardless of the ownership of personal property on his premises. Finally, the possessive pronoun accurately defines the interest of a bailee in personal property in its possession. To permit the tenant of condemned real estate to recover such expenses and to deny them to the owner of the premises obliged to move personal property , of others would be plainly unreasonable: and to construe the Act in such fashion would be contrary to principles of statutory construction dictated by good sense and imposed by legislative enactment. The Statutory Construction Act, Act of May 28, 1937,. P. L. 1019, Art. IV, §52, 46 P.S. 552.

Appellant’s purpose in its effort to remove Section 610 from consideration is to. place itself within either Section 608 or Section 602, under either of which it contends its full expense for moving may be proved. Section 60S allows recovery for moving machinery, equipment or fixtures. It also, however, provided the $25,000 limitation at the time the condemnation of the appellant’s warehouse was effected. Section 602 merely defines just compensation as the difference between the fair market value of the condemned property immediately before the condemnation and as unaffected thereby and the fair market value of the property interest remaining immediately after the condemnation aud as affected thereby.

The Commission comments that §608 in permitting recovery for moving expenses of machinery, equipment and fixtures adds a new element of damages in eminent domain cases and that §602 codified existing law. The appellant contends, to the contrary of these comments, that under the law existing when the Code was enacted the expenses of moving both machinery, equipment and fixtures and personal property other than machinery, equipment and fixtures were recoverable as a separate and distinct item of damage. It argues, therefore, that the Code by §608 unconstitutionally reduced rather than enlarged the eondemnee’s rights where machinery, equipment and fixtures are moved; and in the alternative that if §608 does not apply to the property it was required to move, §602, being a codification of existing law, permits recovery for these expenses as a separate item. There is little we can say about these theses except that they are wrong. The courts of this Commonwealth constantly and persistently, adhered to the principle that just compensation means the difference between the before and after value of real estate affected and that no recovery might be had as a separate and distinct item of damages for the expense of removal either of machinery, equipment and fixtures or of personal property other than machinery, equipment and fixtures. Becker v. Philadelphia, & Reading R. R., 177 Pa. 252, 35 A. 617 (1896); Philadelphia Ball Club v. Philadelphia, 192 Pa. 632, 44 A. 265 (1899); Westinghouse Air Brake Company v. Pittsburgh, 316 Pa. 372, 176 A. 13 (1934); Hahn v. City of Bethlehem, 322 Pa. 129, 185 A. 227 (1936); Butler Water Company’s Petition, 338 Pa. 282, 13 A. 2d 72 (1940); Dyer v. Commonwealth, 396 Pa. 524, 152 A. 2d 760 (1959); Manganese Steel Forge Company v. Commonwealth, 421 Pa. 67, 218 A 2d 307 (1966). The same authorities held, however, that the expense of removing machinery, equipment or fixtures as distinguished from personal property might be considered in determining the before and after value, especially where a leasehold has been taken. See Note 92 U. of Pa. L. Rev. 453. To the extent that it conflicts with the general principles above stated, the dictum of McMillin Printing Company v. Pittsburgh, C. & W. R. R., 216 Pa. 504, 511, 65 A. 1091, 1094 (1907), that market value is an unsatisfactory test in valuing a leasehold was overruled by later cases. But even in McMilUn, the court said, referring, inter alia, to the expenses of moving machinery: “These are matters to be considered in connection with others, not as substantive elements of damage, but as tending to prove the value of the leasehold interest.” 216 Pa. at 511, 65 A. at 1094. The Eminent Domain Code by §§608 and 61.0 changed the law by permitting a separate and distinct item of damage for moving expenses both in the case of personal property and of machinery, equipment and fixtures. Judge Peter F. Hagan's conduct of the trial and his thorough opinion reveal a perfect understanding of the law on this point. His conclusion that §610 was applicable and limited appellant’s recovery for its expenses in removing the personal property in its warehouse to $25,000 was correct.

Appellant also argues that §610’s limitation of its recovery for moving expenses is an assumption by the Legislature of the right to determine what is just compensation. This it says is a judicial and not a legislative power. The principle stated is a correct one. However, as we have pointed out,- it Avas the courts who defined the' Constitutional right to just compensation as not including the expenses of the removal of personal property as compensable. The Legislature, as the Commission comments, enlarged condemnees’ rights.

Appellant’s second attack on the order below is directed to the Court’s failure to make an award for business dislocation damages which it claims were proved. Section 609 of the Eminent Domain Code provides : “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 shoAvn 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 tAventy-four if there is no lease. The amount of such compensation paid shall not exceed five thousand dollars ($5,000.00) and shall not be less than tAvo hundred and fifty dollars ($250.00). A tenant shall be entitled to recover for such business dislocation even though not entitled to any of the proceeds of the condemnation.” The Joint State Government Commission comments that under this section: “. . . the initial burden is on the claimant to show that the business is of such a local character that it cannot be relocated Avithout substantial loss of patronage. Generally this would be true only of small neighborhood businesses. If this burden is sustained then the section provides a mechanical formula for fixing the amount of compensation for this loss.”

Appellant’s entire proof claimed to bring it within this section was the following testimony of the chairman of its board of directors.

“Q. By reason of this move, have you suffered any loss of business?

“A. We estimate the loss of our business as a result of moving from the location will approximate one-third.

“Q. One-third of what?

“A. Well, the total business that Apple Storage did last year was $500,000—

“Q. Approximately one-third of your former business, you mean.

“A. Yes, . . .

“Q. How many business locations did Apple Storage Company have?

“A. Prior to moving where we are?

“Q. Yes.

“A. Three.

“Q. I am trying to clarify your testimony on ‘one-third.’ Do you mean one-third of your business was lost from that location, or overall?

“A. We allocated, actually, each business where we are located, to represent one-third of the total business.

“Q. At the subject premises, 248 South 62nd Street, had you ever entertained any notion of moving prior to notice of condemnation?

“A. We had not.

“Q. As the registered owner, did you have any opinion as to the fair rental value of the premises located at 248 South 62nd Street?

“A. Approximately $3,500 to $4,000 per month.” Section 609 places upon the condemnee the burden of proving not merely that it will lose business but that it cannot relocate without suffering a substantial loss of patronage. It was encumbent upon appellant to prove that its enterprise was of such a character that it could not move without losing .customers: The record shows that the. appellant purchased a warehouse in substitution of the one taken and that the newly acquired facility is in-the same general neighborhood as the old and provides substantially more storage area. Further, a close reading of the record shows that the appellant formerly owned three warehouses, including the one here involved, all of which were condemned and that it consolidated all of its operations in the new property. Its chairman’s testimony that*it .allocated one-third of its business to each of its former warehouses and, tlierefore, could .be .said to -have lost one-third of its. total business by reason of the removal caused- by this condemnation, is meaningless in the light .of the facts that it-is still in business and that-it says it spent $60,000 in moving from this one location. The court below could not in the circumstances have awarded damages under §609. Judge Háganos failure specifically to reject this claim, if inadvertent, was justifiable in view of the indistinct nature of-the;proofs. Jn.any event,-the dismissal- of appellant’s exception .to the 'judge’s decision for its “failure to give $5,000 for business dislocation under Section 609 or even to comment upon it” sufficiently disposed of this matter.' See Rule of Civil Procedure 1038(b).

Affirmed;