Current through Register Vol. 54, No. 44, November 2, 2024
The following provisions shall govern the award of moving
expenses and damages:
(1) An acquiring
agency may adopt the moving expense allowance schedule of the Department of
Transportation of the Commonwealth for the purposes of section 601-A(a)(2) of
the act (26 P. S. §
1-601A(a)(2)).
(2) Damages payable under section 601-A(a) of
the act (26 P. S. §
1-601A(a)) are attributable
to personal property which a displaced person moves from the acquired premises.
(i) The distance of a move of 50 miles or
less shall be presumed to be reasonable.
(ii) A displaced person shall have the burden
of proving the reasonableness of a move of more than 50 miles.
(3) Damages payable under section
601-A(b)(1) and (2) of the act (26 P. S. §
1-601A(b)(1) and
(2)) are ordinarily attributable to personal
property which a displaced person does not move from a business or farm which
is acquired or dislocated.
(i) A displaced
person may claim damages for some items of personal property based on the cost
which would have been incurred if the property had been moved and damages for
other items based on their value in place, but only if the latter items cannot
be moved without substantially destroying or diminishing their value, whether
because of the unavailability of a comparable site for relocation or otherwise,
or without substantially destroying or diminishing their utility in the
relocated business or farm operation.
(ii) If the displaced person chooses to
forego damages under section 601-A(b)(1) of the act (26 P. S. §
1-601A(b)(1)), he may claim
damages for the unmoved personal property under section 601-A(b)(2) of the act
(26
P. S. §
1-601A(b)(2))
determined as follows:
(A) The displaced
person has the responsibility of selling the personal property at a
commercially reasonable public or private sale, which sale may not be held
until after 60 days notice to the acquiring agency.
(B) The original cost of each item of
personal property is compared with the cost of replacing it with equivalent
property in the marketplace to determine which is the lower figure.
(C) The net sale proceeds are subtracted from
the sum of the lower figures determined in clause (B).
(D) The total damages payable under this
subsection is the lesser of 1/2 of the result derived from the procedures set
forth in clause (C) or $10,000.
(iii) Personal property for which damages are
paid under section 601-A(b)(1) of the act (26 P. S. §
1-601A(b)(1)) becomes the
property of the acquiring agency and may be disposed of by the acquiring agency
by sale or otherwise.
(iv) Where
actual direct losses with reference to personal property are measured by the
reasonable expenses which would have been required to relocate the personal
property, payment will not exceed the replacement cost of equivalent property,
taking into consideration the age and condition of the
property.
(4) Damages
under section 601-A(b)(3) of the act (26 P. S. §
1-601A(b)(3)) are payable to
a displaced person whose business cannot be relocated without a substantial
loss of existing patronage, based on a consideration of pertinent circumstances
including the factors as the type of business conducted, the nature of the
clientele and the relative importance to the displaced business of its present
and proposed location.
(i) To be eligible for
payment under this section, the business shall contribute materially to the
income of the displaced owner.
(ii)
Separate legal entities will not each be entitled to a payment under this
subsection, if they actually constitute only one business. In determining
whether two or more legal entities constitute a business, the following
factors, among others, shall be taken into consideration:
(A) The extent to which the same premises and
equipment are shared.
(B) The
extent to which substantially identical or intimately interrelated business
functions are pursued and business and financial affairs are
commingled.
(C) The extent to which
the entities are held out to the public, and to those customarily dealing with
the entities, as one business.
(D)
The extent to which the same person or closely related persons own, control or
manage the affairs of the entities.
(iii) In the case of a nonprofit
organization, the term "existing patronage" includes the membership persons,
community and clientele served or affected by the activities of the nonprofit
organization.
(iv) To be eligible
for payment under section 601-A(b)(3) of the act (26 P. S. §
1-601A(b)(3)) a business
shall occupy the premises from which it is displaced.
(A) [Reserved].
(B) Payment to an owner-occupant under
section 601-A(b)(3) of the act (26 P. S. §
1-601A(b)(3)) shall be
calculated on the basis of the fair monthly rental value of the portion of the
premises occupied by the owner-occupant and used for business purposes. No
payment will be made for the portion of the premises rented to one or more
tenants.
(C) Payment to a tenant
under section 601-A(b)(3) of the act (26 P. S. §
1-601A(b)(3)) shall be
calculated on the basis of the rental being paid by the tenant for the portion
of the premises occupied and used for business purposes by the tenant. No
payment will be made for the portion of the premises rented to one or more
subtenants.
(v) To be
eligible for payment under this subsection, a displaced person shall make
available to the acquiring agency copies of applicable Federal, State and local
tax returns, and shall allow the acquiring agency to examine applicable books
and records.
(vi) In the case of a
business which relocates, loss of existing patronage shall be determined by
comparing the average net earnings at the new location during a period of at
least 6 months with the average net earnings during the 2 taxable years
immediately preceding the taxable year in which the business is dislocated, or
the applicable period provided for in paragraph (6).
(vii) In calculating damages according to the
rental formula, the cost or value of utilities, such as heat, electricity, gas,
water and sewer, shall be excluded from rental or rental value.
(5) A displaced farm operation is
eligible for damages under section 601-A(b)(3) of the act (26 P. S. § 601A(b)(3)) if:
(i) The farm operator has discontinued (or
relocated) his entire farm operation at the acquired property.
(ii) In the case of a partial taking, the
property remaining after the acquisition is no longer capable of supporting a
farm operation having substantially the same economic
production.
(6) In
determining whether damages are payable under section 601-A (b)(3) of the act
(26
P. S. §
1-601A(b)(3))
and the amount of the damages, a period other than the 2 years immediately
preceding the taxable year in which a business or farm operation moves from the
acquired property may be used to determine the existing patronage and average
annual net earnings of the business or farm operation in the following
circumstances:
(i) If a business or farm has
not been in continuous operation at the acquired property for 2 full years
immediately preceding the taxable year in which the business or farm operation
moves therefrom, but has been in continuous operation there for at least 1
year, the existing patronage and average annual net earnings may be determined
by dividing the existing patronage and net earnings for the lesser period by
the number of months in the period and multiplying the quotient by
12.
(ii) If, due to the general
knowledge of the imminence of condemnation, the existing patronage and average
annual net earnings of the business or farm operation were substantially lower
than normal during the 2 years immediately preceding the taxable year in which
the business or farm operation moves from the acquired property, the existing
patronage and average annual net earnings shall be based on the 2 years
immediately preceding the taxable year in which knowledge of the imminence of
condemnation became general. If the business or farm was not in operation at
the acquired property for 2 full years preceding the latter taxable year, but
was in continuous operation there for at least 1 year, the existing patronage
and average annual net earnings shall be determined by dividing the earnings
for the lesser period by the number of months in the period and multiplying the
quotient by 12.
(iii) If a business
or farm operation was damaged by fire, flood or other disaster, whether natural
or otherwise, in the 2-year period immediately preceding the taxable year in
which the business or farm operation moved from the acquired property, the
existing patronage and average net earnings shall be based on the 2 years
immediately preceding the year of the disaster.
(7) The burden of reasonableness shall be met
in accordance with the following:
(i) In
proving damages for reasonable expenses incurred in searching for a replacement
business or farm under section 601-A(b)(4) of the act (26 P. S. §
1-601A(b)(4)), a displaced
person shall have the burden of proving the reasonableness of expenses in
excess of $500, and of expenses incurred in searching more than 50 miles from
the acquired property. The owner of a displaced advertising sign shall have the
burden of proving the reasonableness of expenses in excess of $100 incurred in
searching for a single replacement site, and in excess of $500 incurred in
searching for replacement sites for signs displaced by a single
project.
(ii) Eligible expenses
under section 601-A(b)(4) of the act (26 P. S. §
1-601A(b)(4)) include
transportation expenses, meals, lodging away from home, and the reasonable
value of time actually spent in search, including the fees of real estate
agents or real estate brokers. Expenses claimed except the value of time
actually spent in search shall be supported by receipted bills. Payment for
time actually spent in search shall be based on the applicable hourly wage rate
for the person conducting the search, but may not exceed $10 per
hour.
(8) Reasonable
costs incurred in adapting a replacement business property for the installation
of machinery, equipment and fixtures necessary for the operation of the
displaced business in order to conform to health, safety or other legal
requirements are reimbursable as moving expenses under section 601-A(a) of the
act (26 P. S. §
1-601A(a)) if the acquired
business property was not required to and did not conform to the requirements
and damages were not paid to the owner or tenant of the acquired property based
on a nonconforming use.
This section cited in 37 Pa. Code §
151.3 (relating to scope of
recoverable damages).
