*1 appellate an court does not—committed its order manifest abuse discretion or a clear error of law wMeb controlled the outcome of v. the case. Nicholson Garris, 210 A. 2d Williams Phila- 164; delphia Transportation A. Company, 2d 665.
A of a remittitur very substantial portion verdict is not where unusual, and, it should justified, stand. See Dornon v. McCarthy, where Pa., supra, we affirmed an order which reduced jury’s and the $30,000 numerous cases cited therein.
The appellants have not established the trial court committed a manifest abuse of discretion or an error of law.
Morrissey, Appellant, Department
Highways. *2 1966. Before C. September 28, J., Argued Bell, Rob- O’Brien Eagen, Jones, Cohen, Musmanno, JJ. erts, him Schnader, Segal Harrison, F. with Floge,
Louis for appellants. Lewis, é R. Assistant Specter, Attorney with
George General, him Special Assistant Walheim, Attorney John E. Gen- Assistant Ounliffe, Attorney W. Robert General, eral, Ed- Deputy Attorney Rezzolla, General, R. John ward Friedman, Attorney General, Commonwealth, appellee.
Opinion 1967: Mb. Justice Jones, January appeal This lies from the of a on a entry judgment verdict rendered in a condemnation in the Court case of Common of Philadelphia Pleas While the County. appellant-condemnees raise trial alleged errors, real of their thrust of such argument by reason errors, totally inadequate resulted. B. Morrissey
James his Mary Morrissey, wife, the owners and James B. of, Morrissey, Inc., the lessee a 22.17 acre tract land of, [condemnees], located on the of Frankford southeasterly side Avenue Linden and between Carwithan Avenues Philadel- *3 phia. parcels: this tract consisted of two Functionally, parcel one of consisting approximately 1]—, [Parcel aeres located where the tract adjoins Carwithan is used as the Avenue—, office, equipment yard lessee-eondemnee; of business of the the other place of parcel consisting approximately 4.5 2]—, [Parcel located the tract Linden adjoins Avenue—, acres where for and not used purposes is zoned residential by lessor-condemnees. to Parcel 1 from access Frank- driveways gave
Two of Parcel zoned for being reason by ford Avenue but, no access was available Parcel purposes, residential by Car 1 from Linden Avenue. ordinance, opened as a legally by City was withan Avenue Avenue not paved, Carwithan was However, street. a improved street; fence had or physically graded the Carwithan Ave along condemnees erected been fence 1 in which there was a gate— Parcel of nue side access to Carwithan used—offering Aven not regularly ue.1 partly occupied Avenue was of Carwithan roadbed garage bordered trees. and was
dwelling house tbe con 1960—in connection with On November of exit Expressway— struction an from Delaware por of condemned a the Commonwealth Pennsylvania of of consisted tion Parcel 1. The land taken actually adjoined acres of that of portion .67 Parcel which Ave Carwithan Avenue and extended from Prankford nue to the of southeasterly property limit condemnees’ no and, by reason such access whatsoever taking, 1 to available Parcel Carwithan Avenue.2 After a trial of Common Court No. Pleas Philadelphia returned a jury County, condemnees the amount consisting property damages $28,000 plus detention dam- $8400 Motion for a ages. new trial been having refused, judgment entered on the verdict. present
Condemnees four issues this appeal: (a) that the trial court erred in charging had condemnees the burden of proving amount of damages was Commonwealth’s evi dence showed; (b) that the trial court erred in admit into ting Commonwealth experts who considered Carwithan Avenue a “paper street” the access rights which slight value and then refused to instruct the jury even though ac cess rights may not have been used or regularly used, taking resulted recoverable damages; (c) erred in disregarding the physical facts and *4 credible evidence that the buildings on Par remaining 1cel could not used be as before the taking; (d) that inadequate.3 the
The trial inter court, the alia, charged I jury: “As have you stated to the previously, sole issue here is the principal This loss of access constitutes item of condemnees’ claimed loss. property damages $50,000 had awarded board view The damages appealed detention The Commonwealth this award.
extent of damages suffered plaintiff. the The State doesn’t claim that there were no damages. fact, their expert witnesses have testified that there were damages.
“The disputes State the amount of to the damages extent that the plaintiff is claiming damages excess of that testified by the State’s witnesses. plain- tiff has the burden of must proof, prove pre- a fair ponderance of the credible that the evidence, damages are than greater that which the State’s evidence shows. a fair
“By preponderance of the credible I evidence, mean that their that the evidence, plaintiff’s, damages were greater than what the State must more says, be even convincing you though aby very slight margin, to the ex contrary.” Condemnees cepted to portion this the charge. The following between the court and colloquy condemnees’ counsel place: then took I Mr. think “By Floge: you stated— I on be burden is wrong—the plaintiffs, prove damages that we must than greater what I proposes. State the burden of agree upon proving but the matter of it’s not up us to us, damages, that the than what the State damages pro the Court: have the poses. By you burden Well, Mr. Floge: prov Burden of proving damages. By the Court: I will correct damages. By ing in accordance to what charge you sug of proving the burden damages is gested, Mr. satisfactory, Floge? Is that Mr. plaintiff. By the Court: Very sir. well.” By Floge: Yes, in its the charge examined we are Having entirety, court erred instructing of the had burden of condemnees proving colloquy waiver of such resulted claims Commonwealth obviously, Very there was no such waiver. any error.
92 their tes- damages damages to
tified the Commonwealth. ex produced The Commonwealth two witnesses, in testify opinion to what their perts, damages had been subjected por condemnees of a taking tion of their land. Both gave opinion evidence.5 question
There is no
the burden
on con
was
demnees to
reason
of a
taking
portion of their
value
their
property,
property
had been
Lizza
Uniontown
impaired:
v.
345 Pa.
City,
A. 2d
28
916
“burden of
363,
(1942).
proof”
However,
and the
“weight
the evidence” are not one and the
the former
same;
upon
remains
party
whom
imposed the
a certain amount
duty
producing
order that he
not
may
lose summarily while
the latter involves the
or
credibility
persuasive quality
produced
the evidence
a
and, during
shift
trial, may
to side as
trial proceeds.
side
v.
See: Henes
317 Pa.
McGovern,
Certain of law are applicable: presently (a) believe all or jury may part of or none of the (Commonwealth any witness v. Melton, Pa. 406 178 A. 2d 343, 353, (1962) ; Gaita 385 Pa. Pamula, 171, A. 2d 63 (1956)) ; (b) a condemnation case not disregard evidence as to property values and substitute its own ideas (Roberts Philadelphia, 339, 86 A. 344, (1913)) ; (c) a condemnation case a jury may disregard of the property owner or his (D v. Derry Township School District, 415 urika A. 2d 474 or (1964)) the opinion of taking” Meltzer testified the $1,- Witness “before value was taking” $985,600 018,700, the “after value was and the actual dam- McClatchy age $33,000. taking” testified the Witness “before value taking” $825,000 “after value and the actual damage $25,000.
an
for
expert
the condemnor
v.
344
(Ray
Philadelphia,
Pa.
A.
25
2d
the
of evi
439,
(1942));
(d)
weight
145
6
dence
dependent
oral
the
testimony
always
is
not
the court.
v.
jury,
(Springer
Allegheny County,
401
Hach
Pa.
A. 2d
v.
(1960);
165
383
Kosco
557, 560,
152
2d
meister,
(1959)).
396 Pa.
A.
Inc.,
In Lee v.
Water
176 Pa.
Springfield
Co.,
223,
A. 184
the court
had
(1896)
below
instructed
228,
“
than the
the
the
not be less
‘should
amount
highest
expressed
the
them-
defendants have
to
It
not to be much
ought
higher
selves willing
pay.
plaintiffs’
it
the
put upon
lowest estimate
by
In
”.
the court
because of
reversing
witnesses’
below
“A
this Court said:
party
this erroneous instruction,
to
more than
in order to
willing
pay
be
he should
may
or to end
litigation.
the
is to
duty
avoid
fury
fix
sum
to compensate
the true
the
necessary
plaintiff.
In
they
this
are
but not
doing
the
helped,
by
controlled,
or
estimates
witnesses,
parties
efforts
to buy
All
their
these considerations
peace.
be taken into
may
in no
they
account but
are
sense
(Em-
controlling.”
In
v.
phasis
Newton
supplied.)
Philadelphia,
lief worthy belief. more is
In
A. 2d 788 it (1954), was stated: . . we not to are be understood as even implying the court was bound the estimate of accept verily as the as damage tes- of tified to one the by any Expert witnesses. very from its nature is not testimony proof of a fact. It than more opinion.” is never well intentioned the However court may below have the of unfortunately effect been, its supra, instructions, power and usurp function the jury. As practical a that which the matter, court placed said its approval on the imprimatur convincing nature and of the believability opinion Commonwealth’s required and then condemnees to greater than damages were testified to by the Common- experts. The value and wealth’s convincing nature of expressed by the opinions Commonwealth’s experts trier of for the jury, facts. The weight to testimony to the these experts be given awas ques- it alone; for jury tion court’s instruction this function and invaded evaluated the expert Commonwealth, p. 207, Avins at See: 2dA. (1954). in effective belief. re- inducing this spect the court erred. That such error prejudicial to condemnees is beyond question and this reason for. new trial is rendered imperative.
In view of the conclusion reached ordinarily condemnees’ other contentions need not be considered. in However, view the grant a new deem we trial, it important to note the references to Carwithan Ave nue in the Commonwealth’s case as a “paper street”. Carwithan Avenue was not a “paper street”8 but a legally opened street except lack of and, grading it occupied the same paving, status as other any opened legally street. To such street condemnees had right access even though, such fact, be street, cause its lack of grading was not paving, readily usable. The references to such street as a “paper street” well prejudice condemnees. Any such ref erence upon the retrial of this cause must be avoided for it portrays non-existent fact as a fact. reversed.
Judgment
Mr. Chief Justice Bell
concurs
the result.
Dissenting
Opinion
by Mb.
Cohen
Justice
:
The majority
holds that the trial court erred
charging
condemnees had the burden
*8
that
the amount of
proving
damages
than
that shown
I
Commonwealth’s evidence.
see
with that
nothing wrong
charge.
do
majority
not
that
dispute
principle
burden
the con-
to
But
damages.
demnee
his
that
is no different
condemnee to
requiring
overcome the Com-
as to damages.
monwealth’s
Actually,
was favorable to the
charge
lower court’s
instant con-
8
street”,
“paper
meaning
Borough
see:
As to
Milford
(1927) ;
Lehigh
Burnett,
demnees because their burden proving lessened to damages suffered excess of the amount only they the Commonwealth’s expert testified witnesses. In charge established effect, plateau below which could not but did not estab- find, any way lish a on damages. Under ceiling Ray Philadelphia, 25 A. 2d (1942), this constituted of the usurpation jury’s but the con- function, only complain. demnor the instant the Com- matter, not has raised the issue, monwealth we should not it to permit be raised the condemnees. point
I would further out that a Common- although wealth witness referred legally opened street as a he “paper explained street” in evaluat- plaintiff’s right the street ing gave he full considera- tion to rights ingress egress. Moreover, court charged the street should be considered as and it so legally described opened, by other wit- I nesses. am satisfied that error was cured any that we should affirm judgment court below.
I dissent. Appellant.
Commonwealth v. Bruno, 1966. Before November Argued Bell, C. J., and Rob- Jones, Cohen, Musmanno, Eagen, O’Brien JJ. erts,