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DANTE CLUB RANKIN v. ALLEGHENY COUNTY (01/17/52)

January 17, 1952

DANTE CLUB OF RANKIN
v.
ALLEGHENY COUNTY



COUNSEL

Francis A. Muracca, Pittsburgh, for appellant.

Nathaniel K. Beck, County Solicitor, John G. Brosky, Asst. County Solicitor, Pittsburgh, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Dithrich

[ 170 Pa. Super. Page 303]

DITHRICH, Judge.

Claiming that the construction of the Rankin Bridge in Allegheny County resulted in consequential damages to its clubhouse in Rankin Borough, plaintiff presented a claim for damages before the Board of Viewers. The claim was disallowed on the ground that no damages were proven and on appeal to the Court of Common Pleas the verdict was for the defendant. Plaintiff moved for a new trial and from the refusal of its motion it has brought this appeal.

The new trial motion followed the stereotyped pattern that the verdict was against the law and the evidence and the charge of the court. Leave to file additional reasons was granted but none was filed.

The question of trial errors was not properly raised in the court below and, therefore, would not ordinarily be heard on appeal. But since the learned lower court sitting en banc treated them as though properly raised, we are disposing of them as though they were properly before this Court on appeal.

[ 170 Pa. Super. Page 304]

The chief burden of appellant's complaint is that the trial judge erred in striking from the record the testimony of one of its expert witnesses and in holding that another of its expert witnesses was incompetent. The first witness was West S. Brown. When counsel for appellant was questioning him as to his qualifications, counsel for appellee interrupted to say that his qualifications as a real estate expert were admitted. He was later subjected to cross-examination as to his competency to testify to the fair market value of appellant's property as affected by the improvement and his competency was then objected to. The objection was overruled and the witness was permitted to give his estimate of the difference in value before and after the improvement. After the witness had been cross-examined as to the 'elements' which he considered in arriving at his 'after valuation', a motion was made to strike his testimony. The court said, 'We will grant the motion and strike the testimony from the record and tell the jury to disregard it.' Later in the day the witness was recalled for further examination in an attempt to bolster his testimony by showing that another element that had entered into his estimate of the value of the property as affected by the construction of the bridge was the erection of a ramp approximately two feet from the front of the building and extending across the entire frontage of 24 feet. When asked if he considered 'that as a factor in * * * [his] estimate,' he answered, 'Yes, and very important too.' But he was not asked, nor did he say, how, in his opinion, it affected the value of the building. No mention of a ramp was made in his examination in chief. After he had been recalled to the stand he said that 'earlier in * * * [his] testimony' when he 'spoke of a large viaduct' he meant the ramp.

At the conclusion of his testimony counsel for appellant addressed the court and said, 'am I to understand

[ 170 Pa. Super. Page 305]

Mr. Brown's testimony as to valuation is still stricken from the record? The Court: I am going to rule on that later.' No further mention of it appears of record until the court in its charge told the jury that Brown's testimony 'has [been] stricken from the record * * *, and Mr. Vunak was not permitted to testify, so you have simply the testimony of Mr. O'Connor.' His testimony has not been printed as part of the record, but it was held to be competent and submitted to the jury, since the witness was of opinion that the construction of the ramp would interfere with the light and air of the building, the point counsel had tried to get across in his redirect examination of ...


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