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BERKLEY v. JEANNETTE (04/13/53)

April 13, 1953

BERKLEY
v.
JEANNETTE, APPELLANT



Appeal, No. 34, March T., 1953, from judgment of Court of Common Pleas of Westmoreland County, August T., 1951, No. 174, in case of Perry Robert Berkley et ux. v. City of Jeannette. Judgment affirmed.

COUNSEL

Fred B. Trescher, with him Robert Wm. Garland, City Solicitor, for appellant.

A. C. Scales, with him Joseph M. Loughran and Scales & Shaw, for appellees.

Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.

Author: Jones

[ 373 Pa. Page 378]

OPINION BY MR. JUSTICE JONES

At the trial of the plaintiffs' appeal from an award of viewers for damages to their property due to the condemnation of a portion by the defendant municipality, the jury returned a verdict in the sum of $6,000. The court en banc refused the defendant's motion for a new trial conditioned upon the plaintiffs' filing a remittitur for $1,000 which was done. Judgment for $5,000 was accordingly entered and the defendant appealed.

The plaintiffs were the owners of a tract of land in the City of Jeannette improved with a four-room dwelling. They had acquired the property in two parcels, viz., (1) a tract having a frontage of 32 feet on Sellers Avenue and a depth of 100 feet whereon the dwelling was erected, and (2) an adjoining vacant lot with a frontage of 25 feet on Sellers Avenue and a depth of 123 feet. For the extension of another street (Seventh), the City appropriated of the plaintiffs' property all that had been the vacant lot and a portion of what had been the lot whereon the dwelling stood. The dwelling itself remained intact and the entrance thereto from Sellers Avenue was unaffected. In addition to the actual taking, however, the street improvement left the rear of the unappropriated portion of the property substantially below grade.

The appellant assigns for error (1) the trial judge's refusal to permit the defendant to cross-examine the husband-plaintiff as to the prices paid for the house and lot and the vacant lot upon the plaintiffs' acquiring

[ 373 Pa. Page 379]

    them, respectively, 10 months and 4 months prior to the condemnation, the witness having testified in direct examination to the value of the property as a whole at the date of the condemnation; (2) the trial judge's refusal to permit the defendant to cross-examine one of the plaintiffs' valuation witnesses as to the price at which a somewhat similarly situated vacant property had been sold; and (3) the alleged inadequacy of the court's charge on the measure of damages with respect to (a) detention of payment and (b) the meaning of fair market value.

In Rea v. Pittsburg & Connellsville Railroad Company, 229 Pa. 106, 114-115, 78 A. 73, which was a proceeding for the determination of the damages due the plaintiffs for an appropriation of their property by the defendant railroad company, one of the plaintiffs, appearing as a witness, testified in direct examination to a value for the condemned property at the time of the appropriation of $1,056,000. The defendant sought to cross-examine him as to what he or his father had paid for the property upon acquiring it two years and nine months prior to the condemnation. In connection with the desired cross-examination, defendant's counsel offered "'to show by the witness for the purpose of testing the credibility of his testimony and the competency of his knowledge as to the value of this property in March, 1903, the fact that his father [had] purchased the property... in the month of June, 1900'" for the price of $140,000; that the former owner had had the property upon the market for sale for a number of years before it was finally sold to the ...


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