*282Dissenting Opinion by
Judge Doyle.-I must respectfully dissent to the majority opinion for several reasons, but principally on the grounds that the result reached is contrary to the basic principle that in order to have a defacto taking there must be exceptional circumstances which substantially deprive the condemnee of the use and enjoyment of his property, Department of Transportation v. Lawton, 50 Pa. Commonwealth Ct. 144, 412 A.2d 214 (1980), and, that the result creates dissimilar standards for the condemnation of the underlying fee and the condemnation of a leasehold interest. The resulting disparate standards are contrary to the provisions of the Eminent Domain Code,1 (Code) and the present status .of the law in Pennsylvania.
I. De Facto Taking
In the instant case, the condemnee, DiFurio, alleged that a defacto taking of his Exxon service station business by the Department of Transportation (Department) occurred on July 27, 1986. The Department filed its formal Declaration of Taking on April 14, 1987, nine months later, not an unreasonably long period of time under the circumstances.
When considering whether there has been a defacto taking of an income-producing commercial property, our prior cases have instructed that the owner must demonstrate by substantial evidence, (a) that a formal condemnation of his land was inevitable, (b) that the loss of rental income and the unmarketability of the property were the proximate results of the Department’s activity, and, (c), the most critical element in this case, that the inevitable condemnation caused by the condemnor has made the property “useless for its highest and best use” and has *283rendered the condemnee “one who cannot use his property and, in fact, stands to lose his property because of the imminence of condemnation!” Conroy-Prugh Glass Co. v. Department of Transportation, 456 Pa. 384, 389, 392, 321 A.2d 598, 600, 602 (1974). See also Department of Transportation v. Kemp, 100 Pa. Commonwealth Ct. 436, 515 A.2d 68 (1986); aff’d per curiam, 517 Pa. 309, 535 A.2d 1051 (1988)); Gamma Swim Club v. Department of Transportation, 95 Pa. Commonwealth Ct. 167, 505 A.2d 342 (1986), Lawton. It is apparent that these cases place emphasis on the financial viability of the property being used as an ongoing business and the destruction of that business as the highest and best use of the property itself.
As approved by this Court, one of the key factors in assessing financial viability is whether the property generates “income sufficient to cover taxes and existing mortgages.” Standard Investments Corp. v. Commonwealth, 28 D. & C. 3d 294, 308 (1982), aff’d on the opinion of the trial court, sub nom. Department of Transportation v. Standard Investments Corp., 80 Pa. Commonwealth Ct. 649, 472 A.2d 282 (1984), aff’d per curiam, 506 Pa. 337, 485 A.2d 392 (1984). The instant case, of course, concerns a leasehold rather than fee ownership. As such, because a tenant is not as likely as an owner to pay taxes or a mortgage, a more appropriate standard would be whether the proximate result of the Department’s activity prevents the tenant from generating income sufficient to cover overhead and operating expenses. Cf. Conroy-Prugh, 456 Pa. at 393 n.2, 321 A.2d at 602 n.2. Further, it should be remembered that a condemnee’s burden of proof in a de facto condemnation case is a heavy one. Holmes Protection of Pittsburgh, Inc. v. Port Authority of Allegheny County, 90 Pa. Commonwealth Ct. 342, 495 A.2d 630 (1985), petition for allowance of appeal denied, *284519 Pa. 656, 546 A.2d 60 (1988). Succinctly stated, I believe the standard for a de facto condemnation of less than a fee simple interest such as a leasehold and its attendant burden, should be no less than for the condemnation of the entire fee.
In the condemnee’s effort here to meet his burden of showing exceptional circumstances, he introduced evidence that his gasoline sales declined after August 1986.2 He also testified that subsequent to that date six of his twelve employees resigned and he lost two of his five commercial accounts. The majority concludes that this combination of factors amounts to substantial evidence of the exceptional circumstances required by Lawton.
I disagree and would find that, at most, DiFurio has shown a decline in business revenues and nothing more.3 In Gamma Swim Club, this Court cited Conroy-Prugh for the proposition that a decline in value because of the imminence of condemnation, without more, is not enough to constitute a defacto taking. Therefore, in the case sub judice, the condemnee’s showing of a decline in *285service station revenues does not, by itself, constitute a defacto taking of his property interest without substantial evidence that his business no longer generated sufficient income to cover operating expenses. Cf., Department of Transportation v. Steppler, 114 Pa. Commonwealth Ct. 300, 542 A.2d 175 (1988); Kemp; Department of Transportation v. Smoluk, 100 Pa. Commonwealth Ct. 422, 514 A.2d 1000 (1986), aff’d per curiam, 517 Pa. 309, 535 A.2d 1051 (1988) (holding that a mere diminution of value of residential property is insufficient to establish a de facto taking of the entire property).
The majority distinguishes Gamma Sioim Club and Steppler on the basis that in both, the petitioners owned the subject property, while here, Appellee was merely a tenant. In Gamma Swim Club and Steppler, however, this Court held that there was no defacto taking because the real estate remained usable and had value. Here, the majority concludes that the mere loss of business income destroyed the tenant’s property interest. In other words, it means that if the Department’s actions take a substantial portion of business income, it takes a portion of the leasehold interest as well. This distinction creates a different standard for tenants as distinguished from the owners of the property, and could engender a result where there might be a defacto taking of the leasehold, while at the same time no defacto taking of the underlying fee. The majority opinion expresses this concept as follows:
Loss of business income destroys the value of the Appellee’s leasehold. A substantial loss deprives Appellee of the use and enjoyment of the leasehold. Conroy-Prugh. If DOT’s actions ‘take’ a substantial portion of the income, it takes a portion of the leasehold interest. DOT’s argument *286goes to the issue of damages, not to whether a taking has occurred. (Slip op. at 5.)
I respectfully disagree with the majority’s statement because the interest which is taken is not a partial taking, but such a substantial portion of the property interest that the total property value itself is destroyed.
Equally foreign is the majority’s concept of damages. Generally, of course, the exercise of the power of eminent domain is considered to be an in rem proceeding and damages are assessed or awarded as “just compensation” under Article 1, Section 10 of the Pennsylvania Constitution and Section 601 of the Code, 26 PS. §1-601. Just compensation is defined by Section 602 (a) of the Code, 26 PS. §1-602, as follows:
Just compensation shall consist of the difference between the fair market value of the condemnee’s entire property interest immediately before the condemnation and as unaffected thereby and the fair market value of his property interest remaining immediately after such condemnation and as affected thereby, and such other damages as are provided in this code.
This definition encompasses damages for both the underlying fee interest and the leasehold interest, and those joint claims must be resolved in one proceeding and be satisfied from the same fund or, more specifically, the same total award. Section 507(a) of the Code, 26 PS. §l-507(a), requires that:
The claims of all the owners of the condemned property, including joint tenants, tenants in common, life tenants, remaindermen, owners of easements, or ground rents, and all others having an interest in the property, and the claims of all tenants, if any, of the property, shall be heard or tried together and the award of the viewers or the *287verdict on appeal from the viewers shall first fix the total amount of damages for the property, and second, apportion the total amount of damages between or among the several claimants entitled thereto.
It is still fundamental law in Pennsylvania that where there is a total taking of the property, as here, the interests of the owner and the interest of the lessee are in conflict because, as there can be only one damage award for the condemnation, whatever award is made to the tenant will diminish the award made to the owner. Moreover, we have held that the filing of a formal Declaration of Taking precludes a tenant from subsequently filing a petition for the appointment of viewers alleging a defacto taking under Section 502(e) of the Code, 26 P.S. §1-502(e). Vercheak v. Redevelopment Authority of the County of Washington, 44 Pa. Commonwealth Ct. 481, 405 A.2d 559 (1979). This property loss to the tenant, therefore, has come to be expressed as the difference between the rental value of the leased premises, and the rent actually reserved in the lease, Getz v. Philadelphia and Reading Railroad Co., 105 Pa. 547 (1884), or put another way:
the difference between the rent the tenant is paying, as compared to the rent he should be paying on the free market. For example, a lease with ten months remaining provides for a monthly . rental of $100.00 at the time of a total taking. If it is determined that the fair monthly rental value is $150.00, the value of the leasehold interest is 10 x $50.00, or $500.00 reduced to present value. Conversely, if it can be shown that the fair rental value is not worth more on the market than the contracted rent, the tenant has suffered no damages for the loss of his leasehold. (Under the *288common law a total taking ceases the obligation of the [lessee] to continue paying rent. Dyer v. Wightman, 66 Pa. 425 (1870); Nichols on Eminent Domain, Matthew Bender & Company, 3rd Edition, 1951, Vol. 4, §12.42(3), p. 177; Under a partial taking, the tenant’s obligation to pay rent continued, and the rent did not abate proportionately. Workman v. Mifflin, 30 Pa. 362 (1858).)
Edward L. Snitzer, Pennsylvania Eminent Domain, §201(2)-9 (1965). See Pittsburgh Outdoor Advertising Corp. Appeal, 440 Pa. 321, 272 A.2d 163 (1970); Profit-Sharing Blue Stamp Co. v. Urban Redevelopment Authority, 429 Pa. 396, 241 A.2d 116 (1968). I believe it to be clear, based upon the above cited authorities, that the loss of business income does not go to the issue of damages as such, because any award for damages to the tenant is based not on those grounds but upon different grounds, quite commonly referred to as “bonus” damages, as explained by Snitzer above.
It should also be understood, of course, that compensation to the tenant for business dislocation damages under §601 A(b) of the Code, 26 P.S. §l-601A(b), is a separate item of damages specifically provided by the Code to tenants who lose their leases. Under §601A(b) of the Code, such a tenant is entitled to an award for the relocation of his personal property, or the value thereof if the personal property cannot be moved without diminishing its value, and an amount equal to forty times his actual monthly rental (up to $10,000) if his business cannot be successfully relocated without a substantial loss of existing patronage.
*289II. Terminology of Condemnation Clause
The condemnee further waived his right to compensation by the terms of his lease with Exxon. Paragraph thirteen of the lease states:
13. CONDEMNATION. If the entire premises shall be taken by condemnation or sold to the condemning authority under threat thereof, this lease shall terminate on the date of such taking or sale. If a part only of the premises shall so be taken or sold, and the balance of the premises is not suitable for the operation of a retail drive-in automobile service station, either party may terminate this lease at any time within forty-five (45) days following such taking or sale without liability to the other party therefor. Any and all payments made for or arising from any such taking or for damages to the premises resulting therefrom shall belong and be payable solely to Exxon, except as otherwise provided by law. (Emphasis added.)
The trial court emphasized the term “premises” in its opinion with the result that the lease was read to assign payments to Exxon related only to the taking of the actual physical property and not to DiFurio’s “leasehold interest.”4 Such an interpretation is directly contrary to the construction that our Supreme Court, in Scholl’s Appeal, 292 Pa. 262, 141 A. 44 (1928), gave to a similar termination of condemnation provision. The Scholl’s court held that a clause stating that the lease shall terminate as of the date title vested in the condemnor barred the tenant from *290recovering for the loss of his leasehold interest. See also Snitzer, Pennsylvania Eminent Domain §201(2)-9 (the effect of such a clause is to bar lessee’s right to damages for the loss of the unexpired leasehold term). The identical lease provision at issue here was also interpreted by the Appellate Division of the New Jersey Superior Court to preclude a lessee from sharing in condemnation damages. See Jersey City Redevelopment Agency v, Exxon Corp., 208 N.J. Super. 53, 504 A.2d 1207 (App. Div. 1986).5
The majority attempts to distinguish Scholl’s Appeal from the instant case by focusing on the actions of the condemnee and Exxon after the occurrence of the alleged cle facto taking, and viewing that occurrence of the “taking” as terminating the written lease. However, even if this were true, the resultant tenancy-at-will would have, nonetheless, continued all of the terms and conditions of the written lease, including paragraph thirteen, unless changed by the parties by mutual agreement. Only the rental amount was changed by the parties, see supra n.3, however, and no evidence was introduced to show that paragraph 13 was in any way altered.
Finally, the majority construes Exxon’s attempted enforcement of the termination clause as an attempt to realize a double recovery in that Exxon collected the tenant’s rent during the period between the alleged de facto taking and the de jure taking, and now wants damages for the taking of his leasehold as well. However, Exxon’s enforcement of the termination clause does not create a double recovery because as we have seen, damages to the tenant for the defacto taking would only arise if there was a difference between the fair rental value of the property and the rent the tenant was actually paying, *291that is, the “bonus value” of the tenant’s loss, and that, of course, would be for a period of nine months only. If the fair market value at the time of the taking (i.e. July 27, 1986) was greater than the rent paid by DiFurio, he would be receiving a “bonus” under the terms of the lease. This “bonus,” projected over the remaining term of the lease (i.e., nine months to April 14, 1987, the date a declaration was filed) and discounted to its present worth, would constitute the damages he is entitled to recover. As a matter of fact, DiFurio’s rent was increased in. September of 1986. See supra n.3. He would not, however, in any event, be entitled to damages based on lost business income. Pittsburgh Outdoor Advertising Appeal; Iron City Automobile Co. v. City of Pittsburgh, 253 Pa. 478, 98 A. 679 (1916); Graham Realty Co. Appeal, 67 Pa. Commonwealth Ct. 318, 447 A.2d 342 (1982). Other damages as the result of the taking, either de jure or de facto, would be compensable to the tenant under other sections of the Code and are not at issue here.
Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. §§1-101—1-903.
I have also concluded that the trial court erred by not permitting the Department to introduce evidence that gasoline sales declined generally in the immediate vicinity of Appellee’s service station. Because Appellee’s evidence of a decline in his gasoline sales was relevant to show business decline due to the anticipation of imminent condemnation, the Department’s evidence of a similar decline at nearby stations because of other reasons should have been likewise relevant to show that Appellee’s decrease in sales was not related to the condemnation.
Appellee failed to prove that the income generated by his service station was insufficient to cover his operating expenses. As compelling evidence to the contrary, Appellee not only continued to pay rent to Exxon, but continued to make payments after his rent was increased in September 1986 (after the alleged defacto taking) from $1,350.00 monthly to $1,890.00 monthly. There is no indication in the record as to whether Exxon increased Appellee’s rent or whether Appellee “volunteered” to pay the increased rental, as claimed by the Department, or whether rent was based on a percentage of sales.
I believe that the emphasis in the clause should be placed on the term “or.” Read in such a manner, this provision would then provide that Exxon is entitled to payments both for or arising from the condemnation and for any damages to the premises as a result of the condemnation except as otherwise provided by law, e.g., business dislocation damages specifically provided to tenants.
See also, Kanev, A Critical Analysis of Lease Form 50, 53 Temple L.Q. 506, 553 (1980).