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AVINS v. COMMONWEALTH (11/08/54)

November 8, 1954

AVINS
v.
COMMONWEALTH, APPELLANT.



Appeal No. 271, March T., 1954, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1953, No. 1098, in case of Dorothy Avins and Elsie Towne v. Commonwealth of Pennsylvania. Judgment reversed. Appeal by plaintiffs from award by Board of Viewers in condemnation proceedings. Before WEISS, J. Verdict for plaintiffs in specified sum and judgment entered thereon. Commonwealth appealed.

COUNSEL

Harry M. Jones, with him Thomas C. Evans, Phil H. Lewis, Deputy Attorney General and Frank F. Truscott, Attorney General, for appellant.

Glenn C. Jones, for appellees.

Before Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.

Author: Jones

[ 379 Pa. Page 203]

OPINION BY MR. JUSTICE JONES

The Commonwealth appeals from a judgment in favor of the plaintiffs for damages to their property due to a condemnation of a portion of it in connection with a State highway improvement in the Twentieth Ward of the City of Pittsburgh. The judgment was entered on an award made by the court below to which the case was tried without a jury. The Commonwealth contends that the judgment is excessive, that the learned court below committed reversible error in the method it pursued in making its finding as to the damages resulting from the taking and that a new trial should have been granted.

The plaintiffs' property consisted of a tract of unimproved land, a very considerable portion of which

[ 379 Pa. Page 204]

    was steep hillside. The condemnation actually took for the highway improvement approximately one-half of the tract. It is conceded, or at least not seriously disputed, that the portion of the property remaining after the condemnation is worth little or nothing because of its precipitous topography.

The only evidence in the case as to the damages suffered by the plaintiffs as a result of the appropriation was the testimony of three witnesses who qualified as experts on real estate values in the locality. One of these witnesses was produced by the property owners and the other two by the Commonwealth. As unfortunately happens all too frequently in cases of this nature, the opinions of the experts as to the value of the property taken, injured or destroyed varied over a truly incomprehensible range. The plaintiffs' expert gave as his opinion that the damage was $132,000, while the Commonwealth's witnesses placed it at $7,800 and $6,750, respectively. The Board of View had awarded the plaintiffs $16,500 from which award both the property owners and the Commonwealth appealed. At an earlier trial of the issue raised by the appeals the jury returned a verdict for the plaintiffs of $13,000. A new trial was granted in the expressed belief that evidence as to the purchase price of the property (concerning which one of the owners, who had testified to a patently exorbitant valuation, was cross-examined) had been used by the jury "as bearing on question of value rather than on question of credibility". It was "For such reason [that] the court en banc [was] of the opinion that the ends of justice [required] the award of a new trial." It is noteworthy, however, that the new trial was not granted on the ground of inadequacy of the verdict which was one of the reasons assigned by the plaintiffs in support of their motion.

[ 379 Pa. Page 205]

Upon the retrial, with which we are here concerned, the learned trial judge, being faced with the same wide disparity in the witnesses' estimates of the damages occasioned the plaintiffs, frankly stated in his adjudication that he rejected the opinions of the experts and, having himself viewed the premises, applied instead "good, sound, common horse sense", thereby finding a verdict for the plaintiffs of $37,500 whereon the judgment, here appealed, was entered. We fully appreciate the predicament confronting the court below when called upon to determine an issue of fact as to property valuation on opinion evidence which, in the case of the one expert in particular, was so glaringly wide of the mark as to be little less than ridiculous by comparison with the ultimate finding of the court itself. Yet, we cannot ...


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