15 Pa. Commw. 228 | Pa. Commw. Ct. | 1974
Opinion by
On March 13, 1970, the County of Allegheny (condemnor) filed a declaration of taking, condemning in its entirety the property of Joseph C. Patterson and Caroline S. Patterson (hereinafter collectively referred to as “condemnee”), consisting of 14.6 acres and located in Findlay Township, Allegheny County, for the expansion of the Greater Pittsburgh Airport. The property was of an oblong rectangular shape, with a 432 foot frontage on Moon-Clinton Road, and abutted in part but did not have direct access to the Beaver Valley Expressway to the rear. The first four-way interchange west of the Airport was 100 feet from the property, travelling along Moon-Clinton Road. Topographically, the property was noted by a “dip” or depression 125 feet in depth running through the property, with level plateaus to the front and rear. At the time of the taking, the land was utilized by condemnee as a residence, with a single-family home the only structure thereon,
Condemnee delivered possession of the property to condemnor on May 20, 1970, and was thereafter paid estimated just compensation of $51,800.00 pursuant to Section 407 of the Eminent Domain Code, Act of June 22, 1984, Special Session, P.L. 84, as amended, 26 P.S. §1-407, and incidental moving expenses. A Board of Viewers returned a verdict of $65,700.00 in favor of condemnee on June 17, 1971. Condemnee appealed this award to the Court of Common Pleas of Allegheny County which — after three mistrials, Judge Doyle decided the case on a non-jury basis — returned a verdict of $73,065.00 less the $51,800.00 paid on account, with detention damages from May 30, 1970. From the order of the court en banc, dated April 25, 1973, dismissing condemnee’s exceptions and directing the entry of a judgment on the trial court’s findings, condemnee has appealed to this Court for new trial.
Our scope of review in appeals of this nature is limited to a determination of whether or not the trial court has committed a manifest abuse of discretion or error of law in granting or denying a new trial, and whether or not the verdict is against the clear weight of the evidence, or the judicial process has otherwise worked a serious injustice upon the appealing party. Cohen v. Redevelopment Authority of Philadelphia, 12 Pa. Commonwealth Ct. 125, 315 A. 2d 372 (1974); Redevelopment Authority of Philadelphia v. United Novelty & Premium Company, Inc., 11 Pa. Commonwealth Ct. 218, 314 A.2d 553 (1973).
Initially, we must briefly dispose of condemnor’s motion to quash the appeal as not perfected pursuant to the requirements of Section 2 of the Act of April 22,
We similarly dispose of condemnee’s argument that the court improperly excluded evidence tending to establish a reasonable probability that condemnee’s property would have been rezoned from S-l to B-2 to permit the motel-restaurant-service station use suggested by condemnee. As our Supreme Court stated in Snyder v. Commonwealth, 412 Pa. 15, 19, 192 A. 2d 650, 652 (1963), quoting with approval 4 Nichols on Eminent Domain, §12.322(1) (Rev. 3d ed. 1962) : “Where the
Contrary to condemnee’s suggestion, the trial judge in the instant case did not exclude testimony as to a probable rezoning,
Did the court err in ruling preliminarily that a sale of a property (the Davis sale) directly across the road from condemnee’s property to the condemnor for the same airport expansion program was inadmissible? Our Supreme Court has squarely held that such sales to a condemnor, even if comparable, are not admissible as tending to be the product of coercion on either the seller or buyer’s part. Scavo v. Commonwealth of Pennsylvania, Department of Transportation, 439 Pa.
The trial court denied condemnee’s claim of $500.00 for appraisal, attorney and engineering fees under Section 610 of the Code
Oondemnee’s claim of $1,500.00 for replacement housing under former Section 615(b) of the Code
We have carefully considered the other exceptions raised by condemnee to the evidentiary rulings of the trial court, and find them to be without merit.
Consistent with the above, we enter the following
Order
And Now, September 24,1974, the order of the Court of Common Pleas of Allegheny County in the above-captioned case is affirmed, except as to its denial of $1,500.00 for replacement housing to Joseph C. Patterson and Caroline S. Patterson, and accordingly it is
Public water was available, but condemnee continued to use a private well.
This provision reads in pertinent part as follows: “The decision of the court shall be in writing, and, if requested by counsel for either party for the purpose of filing exceptions or for the taking of an appeal, shall state separately and distinctly the facts found, the answers to any points submitted in writing by counsel and the conclusions of law . . . and if no exceptions thereto are filed in the proper office within thirty days after service of such notice judgment shall be entered thereon by the prothonotary or clerk— if exceptions to the findings of fact or conclusions of law be filed within thirty days, the court or the judge thereof who tried the case in vacation, may, upon argument, order judgment to be entered according to the decision previously filed, or make such modifications thereof as in justice and right shaU seem proper, subject always, nevertheless, to the right to appeal.”
Pa. R.C.P. No. 1038(f) (1).
Section 2 of the Act of 1874 was then only suspended as to trespass actions by Pa. R.C.P. Nos. 1048(f) and 1401.
. The basic requirements for proving the highest and best nse of the condemned property established by Pa. Gas & Water Co., supra, are “[f jirst, the condemnee must show the physical adaptability of the land to such a use, and second it must be demonstrated that this use is needed in the area.” 428 Pa. at 81, 236 A. 2d at 116. The testimony of condemnee’s real estate expert, if found to he credible, would certainly satisfy the second element of “need.” Given the extent of site work requird to fill and grade the 125 foot depression running through the property, there is some question of whether the property was “physically adaptable” for development as a motel-restaurant-serviee station complex at the time of the condemnation. Although a condemnee need not show immediate plans of converting the property to the highest and best use suggested or make physical changes to his property pointing toward that use, the Supreme Court was careful to note in Pa. Gas & Water Co., supra, that “even if the need is present, if the land at the time of the condemnation is not yet physically suited for the claimed best nse, the condemnee will not prevail.” (Emphasis in original). 428 Pa. at 82, 236 A. 2d at 116. Interpreting this requirement, we think the Mai judge properly admitted this evidence as to highest and best use, but discounted the market value of the property for such a potential use by the estimated cost of these site improvements as would the average buyer considering such a use. See Stoner v. Metropolitan Edison Co., 439 Pa. 333, 266 A. 2d 718 (1970); In re Condemnation by the Pa. Turnpike Oomm., 1 Pa. Commonwealth Ct. 66, 272 A. 2d 279 (1970).
Tlie court did sustain objections to questions calling for an opinion of a witness as to the probability of a rezoning which would invade the fact finding function of the jury or the trial judge sitting without a jury as in this ease. See Snyder, supra.
The section which was added by the Act of December 29, 1971, P.L. 635, 26 P.S. §1-610, provides: “The owner of any right, title or interest in real property acquired or injured by an acquiring agency, who is not eUgible for reimbursement of such fees under sections 406(e), 408 or 609 of this act, shall be reimbursed in an amount not to exceed five hundred dollars ($500) as a payment toward reasonable expenses actually incurred for appraisal, attorney and engineering fees.”
Act of December 29, 1971, P.L. 635, §11.
Added by tlie Act of December 5, 1969, PA. 326, §3 ; repealed by the Act of December 29, 1971, PA. 635, §6; and replaced by Section 603-A, 26 P.S. §1-603A.