435 Pa. 140 | Pa. | 1969
Opinion by
Leon Glider and his wife, Claire, were the owners of Philadelphia realty which was condemned by the Department of Highways of the Commonwealth of Pennsylvania for highway construction purposes. A Board of View was appointed on the petition of the condemnees. Subsequently, on application of the condemnees for the payment of estimated just compensation, the Commonwealth paid them the sum of $10,-500. Later the Board of View made an award to the condemnees of $12,500, plus detention damages. The condemnees filed an appeal from the award in the Court of Common Pleas. After trial the jury found in favor of the Commonwealth and awarded no damages. A motion for a new trial by the condemnees was dismissed by the court en banc and after judgment was entered on the verdict, this appeal was filed.
The condemnation involved the taking of 7866 square feet of premises consisting of 11,036 square feet which, prior to the condemnation on May 29, 1967, were improved with a five-story one hundred year old building which had been used by the appellants-condemnees as a candy factory. The premises did not abut on any street and the only access thereto was by way of a private alley used in common with four others. On January 23, 1967, some four months prior to the filing by the Commonwealth of the Declaration of Taking, the premises were badly damaged by fire. Subsequent to the fire, the condemnees never resumed the candy manufacturing business, although they claimed that some repairs were made prior to the condemnation and that the building could be repaired and restored to a condition rendering it again usable as a candy manufacturing plant. The Commonwealth contended,
At trial, the condemnees presented expert testimony that the premises, although damaged by fire as of the date of condemnation, were structurally sound and still usable as a candy manufacturing facility and that its value for such use, including the machinery, equipment and fixtures forming part of the real estate, was $209,251. The condemnees’ expert testimony concluded that that which remained after condemnation was a landlocked parcel having a value of $500. The value of $209,251 was apportioned at $157,700 for the building and $40,551 for machinery and equipment.
The condemnor’s expert testimony was that the improvements, because of the fire, had no economic value or utility whatsoever and that the value of the land before the taking was $10,500 and the value of the land remaining after the taking was $500 resulting in damages of $10,000. To this was added a scrap value of $500 for the machinery and equipment making a net damage of $10,500. The Commonwealth’s machinery and equipment valuation expert testified that the scrap or salvage value of $500 was what a demolition contractor would give as a credit against what he charged for demolition of the condemned premises. The Commonwealth’s real estate valuation expert who fixed the value of the premises as land. only before condemnation at $10,500 testified on direct examination that though he considered the cost of demolition he did not “use that as a consideration because if [he] did the [condemnees] would get nothing.” Under cross-examination by counsel for condemnees he testified further on this matter as follows: “Q. Mr. Meltzer,
It was stipulated of record that the Commonwealth had paid the condemnees $10,500 as its estimate of just compensation in accordance with §407 of the Eminent Domain Code, Act of June 22, 1964 (Spec. Sess.), P. L. 84, 26 P.S. §1-407, but the jury was unaware of this payment.
It is admitted that after the effective date of the condemnation, the condemnees, without prior permission of the Commonwealth, permitted their son to remove the machinery and equipment. The condemnees’ machinery and equipment valuation expert testified that the fair market value of the removed machinery and equipment in place unaffected by the condemnation was $27,369 and that the value thereof severed from the real estate was $2,280.
The condemnees seek a new trial on the grounds that the verdict was against the evidence, was against the weight of the evidence and because of alleged errors committed by the trial judge in his rulings.
The condemnees contend that the verdict of no damages cannot stand inasmuch as the evidence presented by the Commonwealth itself, uncontroverted by any of its witnesses, shows that the damages result
In the instant case, the burden of proving damages was on the condemnees, not the condemnor. It was the prerogative of the jury to decide what evidence it would credit and what it would reject. The jury by its verdict rejected in toto the evidence as to damages presented by the condemnees. And under the rule enunciated in Ray, supra, it was not bound to accept in toto the opinion testimony as to value presented by the condemnor. Nor can it be said that the verdict of the jury was capricious or not rationally related to any evidence because the jury rejected in toto the condemnor’s evidence of damages in the sum of $10,500, since the same valuation expert who testified to damages of $10,500 qualified his opinion by stating that the cost of demolishing the building which was not repairable would be $11,000, Or more than the value of the land without any building. The jury therefore could accept the testimony of the Commonwealth that (1) the building was worthless and so damaged by the fire that it was a burden on the land in that its razing was necessary, (2) that the machinery, equipment and fixtures had a scrap or
The condemnees complain that the trial judge erred in many of his rulings. Mr. Meltzer, the condemnor’s real estate valuation expert, was asked both on direct and cross-examination what factors he considered in arriving at his opinion as to value. In the enumeration of those factors, he stated that he considered the amount of fire insurance carried on the premises and the fact that the Insurance Companies paid to the condemnees 100% of the amount of insurance carried on the building. The witness made no mention of the specific amount of insurance carried or of the specific amount paid for the fire loss. He explained that while this was not the basis of his conclusion that the building was worthless, it served to reinforce his conclusion. The condemnees objected to this testimony and moved for the withdrawal of a juror which was denied by the trial judge. The condemnees contend that the amount of insurance carried on a building and paid by the insurance company for its loss resulting from a fire is not substantive evidence of its value in a condemnation proceeding where land as well as buildings are elements of value. This contention might be tenable if the issue in the case involved the value of the building as it existed before the fire instead of the issue in fact involved which was the value of the building in its condition as it existed on the date of condemnation, which date was after the fire. The witness had testified that because of the fire the building was rendered worthless, indeed that its existence in its damaged state was a burden on the land.
The condemnees contend that the trial judge erred in instructing the jury that since the condemnees permitted the removal of machinery and equipment from the condemned premises, the jury was to deduct its value from the total damages; further error is asserted in the court’s instructions to the jury that the condemnees had not sustained their burden of proving the expense of the removal, transportation and reinstallation of machinery, equipment and fixtures not forming part of the real estate for which they sought damages. It is admitted that about June 15, 1967, after the date of condemnation, the son of the condemnees was by them permitted to begin moving machinery and equipment from the building. A letter dated July 14, 1967, from counsel for the condemnees to the Pennsylvania Department of Highways was admitted in evidence without objection. This letter adyised “that as of the date of condemnation, posses
Section 607 of the Eminent Domain Code (26 P.S. §1-607) provides: “In the event the condemnor does not require for its use machinery, equipment or fixtures forming part of the real estate, it shall so notify the condemnee. The condemnee may within thirty days of such notice elect to remove said machinery, equipment or fixtures, unless the time be extended by the condemnor. If the condemnee so elects, the damages shall be reduced by the fair market value thereof severed from the real estate.”
In view of the whole thrust of the condemnee’s testimony as to damages, that the building and equipment constituted a going manufacturing plant, and in view of the letter above referred to, it is clear that we are here concerned only with equipment forming part of the real estate under §607 and not with personal property not forming part of the real estate which is covered by §608. Section 608 provides that the condemnee shall be entitled, as damages, to the reasonable expenses of the removal, transportation and reinstallation of machinery, equipment and fixtures not forming part of the realty. Therefore, since the condemnees were not entitled to the removal expenses as provided in §608, even if the court was in error in its instruction that the condemnees had failed to produce sufficient competent evidence of the cost of removal, the condemnees were not harmed thereby since the machinery and equipment removed formed part
A condemnee is entitled to the fair market value of his property including the machinery, equipment and fixtures forming part of.the real estate taken. However, if the condemnee elects their removal under §607, his damages “shall be. reduced by the fair market value thereof severed from the real estate.” The instruction of the trial judge on this point was: “Eighteen is denied, but I will instruct you, in considering machinery and equipment or fixtures which, if you determine, are part of the real estate, if any of those items were removed by the condemnees, the value of them would be deducted in arriving at your fair market value of the premises.” The trial judge by this instruction unfortunately omitted to charge the jury specifically as provided by §607, that the condemnees’ damages were to be reduced by the fair market value of the machinery and equipment, severed from the. real estate as distinct from the fair market value thereof in place as part of the real estate. The value of machinery and equipment in place as part of the real estate is generally greater .than the value of that machinery and equipment severed from the real estate. Gottus v. Allegheny County Redevelopment Authority, 425 Pa. 584, 229 A. 2d 869 (1967). In arriving at the value of machinery and equipment severed from the real estate, the cost of severance and removal and reinstallation must be considered since this cost may be more than , the machinery and equipment is worth in which event the severed value would be zero. In calculating the severed value of machinery and equipment, a prospective purchaser of machinery and equipment in. place, would, therefore, consider the costs of severance, removal and reinstallation which must necessarily be incurred to render them useful to him.
In view of our conclusion that the court below erred in this instruction and that a new trial must be granted because of that error, we deem it unnecessary to pass upon the other alleged trial errors assigned in support of the appeal.
Judgment reversed and new trial granted.