7 Pa. Commw. 150 | Pa. Commw. Ct. | 1972
Opinion by
This is an eminent domain case. It involves an appeal from an order of the Court of Common Pleas of Cambria County, refusing to grant a new trial to the property owners, William Arndt and Blanche Fogel Arndt (condemnees), and directing the entry of judgment in favor of the condemnees on the jury verdict in the amount of 865,100 against the Central Cambria School District (condemnor).
In 1943 the condemnees purchased the farm property in question, consisting of approximately 127 acres of land, for the investment purpose of selling “it off in parcels as the need arose.” Prior to 1968, condemnees had sold several parcels to third parties so that at the time pertinent to this case, they retained ownership to 117.79 acres. In or before the year 1968, the con
Thereafter, upon deciding that it needed the entire tract of land owned by the condemnees for school purposes, and without further notice to the condemnees, the condemnor filed its declaration of taking on October 6, 1969 for the entire tract of land. On February
Before passing upon the several issues raised by the condemnees we note that our scope of review has been set forth in two recent opinions, Felix v. BaldwinWhitehall School District, 5 Pa. Commonwealth Ct. 183, 289 A. 2d 788 (1972), and Lewis v. Urban Redevelopment Authority of Pittsburgh, 5 Pa. Commonwealth Ct. 176, 289 A. 2d 774 (1972). In those cases we noted that a motion for a new trial is addressed to the discretion of the trial court based upon the circumstances of the particular case and the lower court’s action in granting or refusing such a motion will not be reversed in the absence of a manifest abuse of discretion or a clear error of law. See also D’Alfonso v. Department of Transportation, 5 Pa. Commonwealth Ct. 341, 291 A. 2d 117 (1972).
The first, and perhaps the most important issue raised by the condemnees is that the lower court committed reversible error in refusing to permit the jury to receive as evidence (and the testimony pertaining thereto), the agreement of sale between the condemnor and condemnees, which had been entered into prior to the filing of the declaration of taking in this case. It is important to note that the Board of Viewers, however, did receive this agreement and did take it into
As we noted in the case of Lewis v. Urban Redevelopment Authority of Pittsburgh, supra: “The admissibility of such evidence is within the discretion of the trial court and should not be disturbed unless such discretion was grossly abused. B & K, Inc. v. Commonwealth, 398 Pa. 518, 159 A. 2d 206 (1960).” 5 Pa. Commonwealth Ct. at 180, 289 A. 2d at 776.
The condemnees contend, however, that the Eminent Domain Code, Act of June 22, 1964, Special Sess., P. L. 84, Art. VII, Section 705, 26 P.S. §1-705, provides for the admission of agreements such as the one here in question. That section of the Code states:
“Whether at the hearing before viewers, or at the trial in court on appeal:
“(2) A qualified valuation expert may testify on direct or cross-examination in detail as to the valuation of the property on a comparable market value, reproduction cost or capitalization basis, which testimony may include but shall not be limited to the following:
“(i) The price and any other terms of any sale or contract to sell the condemned property or comparable property made within a reasonable time before or after the date of condemnation.”
Next in Section 603, 26 P.S. §1-603, fair market value is defined as:
“Fair market value shall be the price which would be agreed to by a willing and informed seller and buyer, taking into consideration, but not limited to, the following factors:
“(1) The present use of the property and its value for such use.
“(2) The highest and best reasonable available use of the property and its value for such use.
“(3) ....
“(4) Other factors as to which evidence may be offered as provided by Article VII.”
Section 604 of the Code, 26 P.S. §1-604, provides that any change in the fair market value due to general knowledge of the imminence of condemnation shall be disregarded. In this case the trial judge took great pain in providing for a special hearing, absent the jury, to determine whether the facts surrounding the proposed piece of evidence (the sales agreement) had any relevancy as to indicate a true reflection of market value. After hearing this testimony, the court ruled that the sales agreement did not constitute a true reflection. We have reviewed this testimony very carefully and cannot find any abuse of discretion on the part of the trial judge.
Next the eondemnees contend that the lower court committed reversible error by instructing the jury to disregard all of the evidence in the record pertaining
Condemnees also contend that the court below improperly permitted the condemnor’s expert witness to use comparable sales of land in the general area which the condemnees argued were not comparable. We have reviewed the record and conclude that the trial court properly permitted the testimony on comparable sales by the condemnor’s expert witness. See Commonwealth v. 108.3 Acres of Land, 431 Pa. 341, 246 A. 2d 124 (1968), and North Side Deposit Bank v. Urban Redevelopment Authority of Pittsburgh, 1 Pa. Commonwealth Ct. 274, 274 A. 2d 215 (1971). The Code at Section 705, 26 P.S. §1-705, quoted above, does not set forth any specific criteria for what is “comparable.” This section merely restricts the evidence to comparable property sold within “a reasonable time before or after the date of condemnation.” The trial judge here determined that the comparable sales referred to by the expert witness were “judicially comparable.” See Com
The last issue raised by the condemnees is that the award of the jury was inadequate, unjust and against the law. In reviewing the record we find that the condemnee wife and their real estate appraisal expert both testified that in their opinion the fair market value of the condemnees’ property was $100,000. The condemn- or’s experts testified to a value of $32,860. All of the expert witnesses used the comparable sales approach inasmuch as the other two available approaches (viz., the cost approach and the capitalization approach) were not appropriate under the facts of this case. The jury award in the amount of $65,100 falls in between. As we have already noted, although the jury did not have the use of the sales agreement in determining its award, the Board of Viewers did utilize that document in arriving at their award, which was just $100 less than the jury award. As we noted in the case of Wolfe v. Redevelopment Authority of the City of Johnstown, 1 Pa. Commonwealth Ct. 172, 273 A. 2d 923 (1971), while the award of the Board of Viewers is an important aspect to be considered when a new trial is requested on the basis of inadequacy or excessiveness of the jury’s verdict, it is not controlling. It is likewise interesting to note that the jury’s verdict is $5,100 more than the consideration mentioned in the sales agreement, upon which the condemnees place so much reliance. Tailing this entire record into account for the purpose of determining whether or not the jury’s verdict is adequate, we find no basis upon which we could conclude that the verdict is not legally sustainable. Our Supreme Court in the case of Vaughn v.
The order of the court below is affirmed.