CERTAIN PARCELS OF LAND, ETC. v. United States, 3100.

• Decision Date: 19 September 1944
• Docket Number: No. 3100.,3100.
• Citation: 57 F. Supp. 768
• Parties: CERTAIN PARCELS OF LAND IN CITY OF PHILADELPHIA, PHILADELPHIA COUNTY, PA., et al. v. UNITED STATES.
• Court: U.S. District Court — Western District of Pennsylvania

57 F. Supp. 768

CERTAIN PARCELS OF LAND IN CITY OF PHILADELPHIA, PHILADELPHIA COUNTY, PA., et al. v. UNITED STATES.

No. 3100.

District Court, E. D. Pennsylvania.

September 19, 1944.

Wolf, Block, Schorr & Solis-Cohen, by Morris Wolf, all of Philadelphia, Pa., for plaintiffs.

Gerald A. Gleeson, U. S. Dist. Atty., C. James Todaro, Sp. Asst. to Atty. Gen., and Charles M. Irelan, Atty. Department of Justice, of Washington, D. C., for defendant.

GANEY, District Judge.

This is a motion for a new trial. The plaintiff, the Pep Boys, Manny, Moe and Jack, were the owners of premises at Tenth and Summerville Avenue, in the City of Philadelphia, which was used as a warehouse for the storage of their merchandize used in the transaction of their business, and for office purposes. On April 1, 1943, the property was condemned by the government and the matter tried on the 18th day of February, 1944, and a verdict rendered in favor of the plaintiff in the amount of Three Hundred Fifty Thousand Dollars ($350,000).

Stated simply, the plaintiff's motion is to the exclusion of certain testimony offered by it, to show the cost of removal of their inventory and certain shelving which had been set up in the structure. It is the contention of the plaintiff that the Court should have permitted the introduction of the evidence of the cost of removal as a consideration in the determination of the market value of the property. A further ground of the motion is the court's refusal to admit as an item to which the plaintiff allege they were entitled, unpaid taxes for the year 1943, which were due and owing at the time the building was condemned, to wit: April 1, 1943.

With respect to the first question involved as to whether or not the plaintiff should have been permitted to show the cost of removal, while not entirely free from difficulty, I think is not well taken.

The government here took the fee simple in the property and the only question before the Court and jury was the fair market value of the condemned property as of April 1, 1943. Such market value was neither increased nor diminished by the expenses to which the Pep Boys were subject to in moving away from their plant. Numerous cases are in accordance with this view. Joslin Manufacturing Company v. City of Providence, 262 U.S. 668, 675, 43 S.Ct. 684, 67 L. Ed. 1167; Potomac Electric Power Co. v. United States, 66 App.D.C. 77, 85 F.2d 243, 249; Futrovsky, et al. v. United States, 62 App.D.C. 235, 66 F.2d 215.

In addition it might be stated that recourse to the debate on the passage of the second War Powers Act of March 27, 1942, 50 U.S.C.A. Appendix § 631 et seq., which gives authority for such condemnation as is here under discussion, shows that at least two amendments were offered, attempting to introduce under broad language the allowance of special items of damage, under which might be construed cost of removal. The defeat of...