*1 testimony degree guilt hearing of the notes of of setting (December sentencing forth the date of 1953) Although, imposed. and the sentences record dispute appellant’s does not doubt is cast serious claim, on repre- his recollection his failure to his recall lawyers during degree sentation two an extensive guilt hearing. appellant received the lenient
Moreover, most sen- tence allowed under the law the offenses which he had been convicted. Under these if circumstances prejudice his recollection is can correct we see no since adjudication guilt under an murder first degree separate under two indictments minimum imposed can sentence that be life two sentences to concurrently run which sentence he received un- appeal. der the bills that form the basis of this Finally, appellant argues that the Commonwealth permitted proceed theory should not be under felony plea guilt on generally murder to murder charging felony. without an indictment the enumerated support precedent offered no has ar gument impressed any nor have we been reason in logic or law to embrace it.4 The order the court below is affirmed. again appeUant attempted Bruton to raise issue which clearly specifically provided waived when an opportunity P.C.H.A., supra, §3, to raise this issue and declined. p. supra. §1180-3. P.S. See (et Appellant) Porter al., Commonwealth. *2 J., Eagen, Before C. 15,1973. March Jones, Argued Pomeroy, Nix and Manderino, JJ. Roberts, O’Brien, *3 Thomas J. him Dempsey, with Armand Gingolani, Luke Jr., and and Dempsey, & for Gingolani Gingolani, appellant.
David A. Johnston, Jr., Assistant Attorney General, him with Robert W. Gunliffe, Deputy Attorney General, and Israel Paekel, for Attorney General, Common- wealth, appellee. by
Opinion Jones, October 3, Mr. Chief Justice 1973:
This arises from an appeal eminent domain action to determine the just compensation payable to Robert C. Sechan [appellant-condemnee], and trading doing business as Sechan and Limestone, H. Francis Porter for [condemnees], his wife Porter, E.
and Katherine On in Butler County. located the taking property of Pa., Dept, Commonwealth March 1963 the condemned, of Transportation] Dept, Highways [now ap- of a limited access highway, for the construction by of a 46 acre tract owned 11 acres proximately on Oc- before the condemnation, Porters. Five months lease entered into a mineral tober 13, 1962, appellant him and to remove right the Porters, giving coal under clay and all the limestone, process for years—renewable for a term Porter property re- the Porters lease agreed. if years another five among things, appellant pay other quired, month from the date execution, Porters per $25.00 for all on the ton land, entry per before $10,000 $.05 for the to haul right and ton per limestone removed $.01 also owned across the Porter property. mineral interests four tracts owned contiguous leased and condemned. On one different also persons by operated limestone adjacent appellant these These mineral five interests—creat- plant. processing in- used in the ed leases—were appellant separate market- and operations mining, processing tegrated in 1953. Appellant’s operation began limestone. ing condemnation, joined Following A hearing Porters’ view. viewer’s was held petition their filed June 1964. The viewers report had been property damaged determined compensation of $16,000 including delay extent the Porters $14,000 $2,000 to appel- payment: *4 from in his appeal lant. viewer’s deter- consolidate, mination to eminent domain sought which involved Porter only property, proceeding to his interests in all of the five damages claims The lower court rejected condemned properties. the lower court’s affirming decision we approach. of not a denial due that it was to process held refuse to
465 ac in one condemnation claims consolidate appellant’s pro in each view to attempt prove lie might tion since in the property of interest his the value ceeding use. from the integrated resulting the value showing 646 A. 2d Pa. 596, Commonwealth, Porter v. (1966). in jury before a tried subsequently
The case was Butler Coun- Pleas Court in the Common May, resulting of damages amount the total to determine ty amount and to apportion condemnation from the ap- the property Porters as owners between the The mineral interest. leased as owner pellant as was to damages testimony respect conflicting wit- Porter and his two Mr. testimony follows: to his to $143,000 between $67,000 nesses ranged testified that appellant’s witness damages; appellant’s two and the Commonwealth’s were damages $112,000; in damages to $7,400 between ranged $6,000 witnesses in A favor combined. verdict for both interests with- in the amount $34,000 rendered condemnees was $27,000 Porters, out delay compensation: the verdict The trial court molded $7,000 appellant. delay compensation by awarding in of favor Motions a new trial were the sum $1,773.31. court. Ap- denied the lower all but filed by parties to the Commonwealth filed the only appeal pellant Court. Court divided being equally
The Commonwealth
or-
the lower
affirmed
court’s
absent)
J.,
(Manderino,
filed March
1972.
8,
Judge
curiam opinion
a per
der
of affirmance.
Se-
an
support
filed
opinion
Rogers
Pa.
Commonwealth, 4
Commonwealth
Limestone
chan
allocatur
(1972).
granted
A. 2d 553
We
Ct.
court’s
application
“integrat-
lower
to review
in Porter v.
promulgated
which
doctrine,
use”
ed
persons property in con- who interests have may tiguous by recognizing be of land that there prop- a of increase value as result the condemned an utility erty being properties of used with other similar assemblage. in an arguments com- four that he feels makes reversing judgment
pel our of the lower court granting Initially argues trial. he that the trial new admitting court erred evidence Commonwealth’s eight “comparable on sales” because sales were dairy general properties farm and a none of which farm, opera- part integrated of an was assembled limestone tion.
Although
705(2) of the
Domain
Section
Eminent
testify
provides
expert may
as
Code1
valuation
price
comparable properties
to the sale
sold within
a reasonable time before or after the
condemnation,
selling prices
allegedly comparable properties
all
are
In
admissible.
order to be
the trial court
admissible
“judicially comparable.”
must decide whether the sale is
Commonwealth v. 108.3
244
Land,
Acres
A careful of the record indicates that these judicially comparable. though sales were not Even properties becoming some these sales resulted part integrated operation they of an limestone stood comparison alone at the time of their sale. part assemblage Porter tract not one of them of an all of which tracts, were known to have substantial deposits through marketable limestone and accessible, Session) (Special Act of June L. P. P.S. seq. 1972-73). (Supp. §1-101 et oper- hauling rights, contiguous to a on an tract which ating plant crushing limestone located. Thus, subject properties value of which were the comparable been not have Commonwealth’s sales could being part integrated operation. enhanced from of an *6 impossible it to Commonwealth contends that property find a sufficient number of were sales which part integrated operation of an at the time of their sale comparable guideline to a serve as since an owner of an integrated operation would not sell one of his longer operation. unless it was no crucial to the It con- alleged comparable only cludes that its sales were the approach disagree. rational to value in this case. We assuming comparable Even there are no sales avail- might by able, market value be established the tes- timony persons acquainted with the and lands, whose knowledge experience qualifies and them form in- to an telligent judgment proper as to its valuation. See Glen Alden Coal Co. v. Pa. Commissioners, 345 27 A. 2d “judicial
Some of
compa-
these
further
sales
lacked
rability”
proof
in that
presence,
there
no
was
of the
quantity
quality
or
proper-
limestone underneath the
ties. When asked whether he knew if there was lime-
particular property
stone underneath a
one of the Com-
monwealth’s
generally
valuation witnesses
“It’s
stated,
particular
known
this
area there is limestone in this
general area.” The same witness admitted that as to
properties
one of the other
he did not know whether at
the time of the sale the seller knew whether or property.
there was limestone under the
Neither Commonwealth’s valuation witnesses testified as to
part
allegedly comparable
what
properties con-
compared
nor
quality
tained limestone
recoverable
properties
from these
to that recoverable from the Por-
ter tract.
Werner v. Commonwealth,
Appellant’s argument the Commonwealth’s geologist trial court to allow thick- limestone, to that the total amount testify of 15 in Butler County 13,300,- ness excess feet, are not Common- 000,000 persuaded tons. We contention that these were admissible figures wealth’s its sales support allegedly comparable prices *7 not that mineral lease was agreement show appellant’s and prejudicial This evidence was irrelevant unique. of the could not be into integrated since much reserves The record discloses this limestone that operation. all of in the of that included the limestone figure county one or more it had foot or 120 feet whether thickness, It included under of overburden. also all the limestone in un- Butler Butler and City the and towns County, all houses, der and factories roads, buildings, railroads, there no evidence as to County. Moreover, was far from the the limestone located assemblage how was any and it was under other whether contiguous tracts. next he that have argues should been per- in excess of royalty payments
mitted to show
$100,000
of the
to two
owners
other
in
$50,000
This evidence was
in
operation.
the
offered
integrated
the Commonwealth’s
to
valuation witnesses’
response
testimony
mineral lease
worth
that
was
the
$50.00
nothing
appellant.2 The
to
and worth almost
Porters
denying appellant’s
ad
motions to
in
lower court erred
there was some
to
that
evidence
show
mit this rebuttal
property
Porters
of both the
interests
value
testimony
impeach
appellant
of the Common
and to
testimony
anwas
the latters’
witnesses. Since
wealth’s
appellant’s
totally
attempt
case,
discredit
to
right
meet
it. Schoen
to introduce evidence to
had
cautionary
(1934). A
Appellant’s Common final required been witnesses should have wealth’s valuation testifying in on to value his examination, when direct separately and should from Porters’ interest terest rely permitted on the value” been to “bonus not have requiring approach. Any in not the Common error any testify separately to as to value wealth’s witnesses assigned appel appellant’s interest to was cured when elicited witnesses, on cross-examination these lant, testimony opinion no had their his interest value. ap not determine whether the “bonus value” We need applicable type proach situation since the record fails disclose whether Commonwealth’s theory damage on this arrive their witnesses relied at figure.3 put valuation witnesses One Commonwealth’s no value appellant’s originally interest. other valuation witness
on as- *8 appellant’s signed interest but later value to testified no that the before $50.00 value was condemnation. market fair difference, any, is the if bonus value between The the fair contract If and the rent. is value there no rental bonus market damaged. Pittsburgh lessee has not been a condemned then value Corporation Appeal, Advertising 272 A. 2d Outdoor only reference to substantial value” The “bonus is the of one following of the Commonwealth’s redirect examination valúa- The order of the Court is Commonwealth reversed and a trial new is granted.
Concurring Dissenting Opinion Mr. Jus- tice Manderino :
I concur the to the admissi- majority except rebuttal evidence of bility royalty appellant’s I from dissent the determination that payments. amount of the should be royalty admissible. payments
The objects that he was not appellant permitted he introduce evidence that had showing paid royalties In to fee of other in one owners the assemblage. in in an- case the amount was excess of $50,000 in other case excess of The $100,000. theory appellant’s was that been testimony should have permitted rebuttal to Commonwealth valuation witnesses who no value on the interests. placed appellant’s property I fail to how this evidence was see, however, probative on the value interest. The appellant’s property made are the cost of payments doing as an established limestone business processing opera- “Q. Greene, going five a tion witnesses: Mr. cents ton the rate Five, Q. you area? A. I six cents think. Do limestone Dempsey: any No, consider this lease had bonus value? A. sir. Mb. inquiry. value, just object As to bonus it I to this line of is not lease, part Your Honor. The Court: You can a of a mineral Q. Greene, cross-examination, Dempsey. straighten up Mr. Mr. it on Well, you you explain if bonus value is? A. are rent- what would you you property, approach ing piece have someone to sublet you money paying rent; it, you are it for more can rent your your Q. opinion, upon based knowl- a bonus. difference area, edge in this could Mr. Seehan have ob- values real estate per royalty? for five cents ton leases limestone tained other Mb. royalty typical object. Dempsey: situation and not a This is I merely right possession, situation; but consume lease object bonus situation. I is not a to this and this and reconsume questions. The Sustained.” Commonwealth’s line of Court: they asked relied and were never whether state did not witnesses approach. value” “bonus on
471 in rebut- have been relevant may tion. payments Such Porter inter- the value the tal to evidence concerning payments the Porters would receive such est because The Porter interest, however, income. value the in filed an no have not They longer proceeding. be in- interest would not and the value their appeal in in the further this case. Thus, volved proceedings will not be evidence relevant royalty payments in not be a new trial. and should admissible by Dissenting Opinion Me. Justice Eobeets : I In Porter dissent. v. Common- prior decision, Pa. A.2d wealth, 419 215 646 this Court 596, (1966), determined that the of both Porter and Sechan interests had to be tried The single proceeding. majority holds that error reversible was committed when today relevant to testimony unquestionably Porter’s interest not to (but directly was admitted that Sechan’s) proceeding. my evidence was before judgment, properly
the tribunal. As a general
“evidence is
rule,
admissi-
ble if it
for
.
. .
competent
any purpose
Morse
Aroni,
Destructor Co. v.
Boulger
101
57, 65,
I
A.2d
am therefore in
agreement
Eogees Commonwealth Court
Judge
overlooks the fact
at
holding
the trial
“[t]his
that of the
issues were
simply
apportionment
for his
right
due the
extract
but
minerals,
of the total amount of
also that
damages
prop-
the code to be fixed
erty
by
(required
jury)
of those
due
damages
portion
properly
Porters.
as to
sales
testimony
properties
comparable
was relevant
to both of
the Porter property
these is-
admissible in
clearly
and therefore
sues
this trial.”
Commonwealth,
Limestone
Pa.
Sechan
Common-
288 A.2d
621, 625,
(1972)
Ct.
(opinion
wealth
Eogees
Support
joined
of Judge
Affirmance,
J.)
(emphasis
P. J.
Wilkinson,
Bowman,
have request
Sechan conld
omitted).
footnote
original;
neither asked
Counsel
instruction.
a limiting
ed
charge.
nor
objected
judge’s
an instruction
such
not been
claim of error has
the present
Consequently,
*10
Roe
Sears,
Bizich v.
review.
appellate
preserved
Pa. R.
(1958);
Mr. Concord-Liberty Savings Loan Association Properties, Inc.
et al. NTC Company Appeal. General Electric