185 A.3d 1177
Pa. Commw. Ct.2018Background
- Pennsylvania Turnpike Commission condemned Tarlinis' property in Bensalem (Declaration filed April 27, 2007) for I-95 interchange; issue at trial was fair market value as of the declaration date.
- Tarlinis argued highest and best use was commercial (hotel); Commission argued residential use. Experts for Tarlinis testified the site was adaptable to hotel use and that access (via an easement over adjacent Parx Casino land) would be reasonably available.
- Tarlinis’ land planner (Kennedy) and appraiser (Quinn) relied in part on an affidavit by Thomas Bonner (VP & General Counsel for Parx owner) stating Parx likely would have granted a driveway easement at a fair mutually agreed price. Bonner did not testify and was not cross-examined.
- At sidebar the Commission objected that the Bonner affidavit was hearsay and legally insufficient to support expert opinion; the trial court allowed Kennedy to describe and read portions of the affidavit to the jury, with instruction on weight.
- Jury awarded $2,300,000 to the Tarlinis. Commission moved for post-trial relief; trial court denied the motion. Commission appealed; this Court affirmed the trial court's evidentiary ruling.
Issues
| Issue | Commission's Argument | Tarlinis' Argument | Held |
|---|---|---|---|
| Whether trial court erred by admitting an out-of-court affidavit as a basis for an expert’s valuation opinion (hearsay) | Admission was error because the court should first determine whether an affidavit of this kind has sufficient substance and is the kind of data experts reasonably rely on; expert’s bald reliance is insufficient | Rule 703 permits experts to base opinions on inadmissible hearsay if experts in the field reasonably rely on that type of information; affidavit was a neighboring owner’s statement of willingness to grant easement and was corroborated by experts’ observations | Affirmed: trial court did not abuse discretion; expert reliance on the Bonner affidavit was permissible under Pa.R.E. 703 and related precedent, and affidavit’s contents were relevant and not the sole basis for opinion |
| Whether the trial court must independently evaluate the affidavit’s reliability/substance before admitting expert testimony that relies on it | The court must independently evaluate the underlying data’s reliability (citing Paoli and Merrell Dow) as a threshold legal question | Pennsylvania precedent allows experts to rely on out-of-court material customarily used in the field; trial court evaluates admissibility and can instruct jury on weight; cross-examination and impeachment are proper safeguards | Rejected as applied here: trial court’s gatekeeping was reasonable; Commonwealth precedent and the Eminent Domain Code permit more lenient receipt of valuation evidence and place weight assessment with jury |
| Effect of Eminent Domain Code §1105 (liberalized admission of expert valuation evidence) | Section 1105 does not override Rules of Evidence; court still must ensure expert foundation | Section 1105 allows qualified valuation experts to state facts/data considered; combined with Rules 703/705, experts may rely on such sources and the jury assesses weight | Court held §1105 supports admission (subject to Rules 703/705); trial court acted within discretion and provided jury instructions |
| Whether absence of Bonner’s live testimony or possibility of cross-examination required exclusion | Without Bonner, the affidavit is untested hearsay and unreliable; exclusion required | Bonner was a known, credible official whose affidavit expressed Parx’s position; experts also had personal knowledge and other bases; opposing side could have subpoenaed or impeached | Court found lack of Bonner testimony was not fatal: affidavit was known before trial, experts corroborated it, and the Commission had opportunity to seek Bonner’s testimony; issues were for cross-examination and jury weight |
Key Cases Cited
- Pa. Gas & Water Co. v. Pa. Tpk. Comm’n, 236 A.2d 112 (Pa. 1967) (two requirements for proving highest and best use: physical adaptability and demonstration of local need)
- Primavera v. Celotex Corp., 608 A.2d 515 (Pa. Super. 1992) (experts may rely on extrajudicial reports; reliance provides indicia of reliability; cross-examination safeguards)
- Boucher v. Pa. Hosp., 831 A.2d 623 (Pa. Super. 2003) (reiterating that experts may use hearsay sources customarily relied upon in the field)
- In re Paoli R.R. Yard PCB Litig., 35 F.3d 717 (3d Cir. 1994) (judge must independently evaluate reasonableness of expert reliance on particular data)
- ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254 (3d Cir. 2012) (expert unfamiliarity with underlying methods or data can preclude effective cross-examination and undermine admissibility)
- Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997) (courts should independently evaluate underlying data supporting expert opinion)
- Commonwealth v. Watkins, 108 A.3d 692 (Pa. 2014) (expert reliance on affidavits prepared for litigation and untested for credibility may be excluded when such statements are not the type reasonably relied upon)
- Lower Makefield Twp. v. Lands of Dalgewicz, 67 A.3d 772 (Pa. 2013) (Eminent Domain Code broadened admissibility of valuation evidence but did not eliminate evidentiary safeguards under Rules of Evidence)
- United States v. Sims, 514 F.2d 147 (9th Cir. 1975) (expert synthesizes primary source material, presenting it in opinion form for the factfinder to evaluate)