Redevelopment Authority v. Wabank Real Estate & Investment Co.

Dissenting Opinion by

Judge DiSalle :

I respectfully dissent.1 Admittedly, Section 601A of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. §1-601A, now eliminates the proscription that reasonable moving expenses cannot exceed the in-place value of the personalty involved. I am of the opinion, however, that the 1971 amendment only removed the arbitrary ceiling on allowable moving costs. I cannot believe that the Legislature intended that the in-place value of personalty was not a factor to be considered in determining reasonable moving expenses in a particular instance.

In my view, the in-place value of the personalty bears directly on the question of what would be reasonable moving costs under the circumstances. This is not to suggest that moving expenses may never exceed the in-place value of the objects to be moved. Many situations come to mind where it would not be unreasonable if the expense of moving an item would exceed its value by ten, twenty, or even fifty percent. This may well become the rule, rather than the excep*10'tion, so as to encourage relocation rather than abandonment of commercial and industrial enterprises.

However, to require a fact-finder to determine reasonableness without the slightest id.ea as to the in-place value of the item being moved seems, unfair both to the fact-finder and the condemnor. In my judgment, the rule should be that such evidence .is relevant and, therefore, admissible, but not conclusive, on the issue of reasonableness. Though we do not wish to leave the condemnee in a position worse than before the condemnation occurred, neither should the condemnor be required to pay more compensation than is reasonable.2

This view would comport with the current thinking on evidentiary matters in eminent domain proceedings. More and more, the cases and commentators suggest that the fact-finder, whether it be the board of view or the jury, should be allowed to consider every factor which bears some reasonable relationship to questions of value or, as in this case, expense. See E. Snitzer, Pennsylvania Eminent Domain, comments to Section 705 (1965).

Initially, I am not at all convinced that we should address the merits of this case. As I read Section 517 of the Code, 26 P.S. §1-517, only a decree “confirming, modifying or changing the report” constitutes a final order. A decree referring it back to the viewers is not a final order. In KeUmam, Trust Fund v. Commonwealth of Pennsylvania, Department of Transportation, 24 Pa. Commonwealth Ct. 102, 354 A.2d 583 (1976). Judge Mbncer, in discussing Section 517, said that if the Court below referred the report back to the viewers, it would not be a final order and therefore not appealable.

In this case, particularly, would this be so, since the admitted in-place value was $180,990 and the claimed moving expenses exceeded $800,000.