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BERGER v. PUBLIC PARKING AUTHORITY PITTSBURGH (11/29/54)

November 29, 1954

BERGER
v.
PUBLIC PARKING AUTHORITY OF PITTSBURGH, APPELLANT.



Appeals, Nos. 179 and 180, March T., 1954, from judgment of Court of Common Pleas of Allegheny County, April T., 1952, Nos. 2149 and 2211, in case of John N. Berger et ux. v. Public Parking Authority of Pittsburgh. Judgment reversed. Appeal by Public Parking Authority from award by Board of Viewers. Before O'BRIEN, J. Verdict for property owner and judgment entered thereon. Defendant appealed.

COUNSEL

Ella Graubart, with her Patterson, Crawford, Arensberg & Dunn, for appellant.

James P. McArdle, for appellees.

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

Author: Bell

[ 380 Pa. Page 20]

OPINION BY MR. JUSTICE BELL

On February 28, 1951, the Public Parking Authority of Pittsburgh condemned the property of John N. Berger and his wife, known as premises 411-413 Boulevard of the Allies. The property consisted of a lot extending 40 feet on the Boulevard and 20 feet deep,

[ 380 Pa. Page 21]

    with a three story building on it. The building, originally a residence of Swiss chalet design, had been converted into an office buildings.

Berger purchased the property on June 27, 1946. A year later, on July 19, 1947, he entered into a written agreement to sell the property to Edison Speer for $36,000. The sale fell through in November, 1947, and the down payment of $2,000. was forfeited. Thereafter, on December 11, 1947, Berger transferred the property to the name of himself and his wife, as tenants by the entireties. At the time of the condemnation the premises were rented for $350. a month. The Board of Viewers awarded $54,560. for the fee simple to the owners of the building (which included detention money to February 1, 1952), and $1,000. to the lessee. Appeals were taken by the Parking Authority and by the owners.

At the trial in the Court of Common Pleas the jury returned a verdict in favor of the owners in the sum of $64,385. (which included detention money at the rate of 4% to April 9, 1953), but nothing for the lessee, although the Court had instructed the jury to return a verdict of $500. for the lessee's removal costs.

The Authority's motion for a new trial was refused, whereupon the Authority appealed.

On behalf of the Authority, Louis Monteverde, a real estate expert, valued the property as of the date of condemnation at $42,500., and Robert Macdowell, a real estate expert, valued it at $45,000. On behalf of the owners, West Brown, a real estate expert, valued the property at $75,000. and Thomas McCaffrey, a real estate expert, valued the property at $72,000.

Counsel for the Authority attempted to cross-examine the owner of the property, Mr. Berger, and to examine the purchaser of the property, Mr. Speer, concerning the written agreement of sale dated July 19,

[ 380 Pa. Page 221947]

(the settlement date of which was September 1, 1947, later extended to October 31, 1947) for $36,000. The trial Judge refused to permit this cross-examination or examination, and also excluded the aforesaid agreement of sale, on the ground, inter alia, that it was too remote, namely, three years and four months before the condemnation.

Generally speaking, on owner of property may be asked what he paid for the property and similarly the price at which he offered to sell the property, if the purchase or sale was not too remote: East Brandywine and Waynesburg R.R. Co. v. Ranck, 78 Pa. 454; Lutz v. Allegheny County, 327 Pa. 587, 590, 195 A. 1; Rea v. Pittsburg & Connellsville Railroad Co., 229 Pa. 106, 78 A. 73; Greenfield v. Philadelphia, 282 Pa. 344, 127 A. 768.

In Lutz v. Allegheny County, 327 Pa., super, where 78 acres of farm land was condemned for an airport, this Court held that the husband-plaintiff could properly be cross-examined as to the cost of the property which he had bought 7 years before the condemnation, and said (p. 590): "... plaintiff could have been asked on cross-examination the direct question as to what he had paid for the property: Greenfield v. Phila., 282 Pa. 344, 127 A. 768."

In Greenfield v. Phila., 282 Pa., supra, the Court permitted a plaintiff who claimed damages for the taking of his property, to be cross-examined as to the price he paid for it, even though he did not testify on direct examination as to the value of the property and even though "the purchase was made more than a year before the appropriation, it being alleged that in the meantime the character of the neighborhood had changed and values greatly increased."*fn1 The Court,

[ 380 Pa. Page 23]

    speaking through Mr. Justice (later Chief Justice) SCHAFFER, said, inter alia (pp. 351, 352): "We expressly held in Rea v. Pittsburgh & Connellsville R.R. Co., 229 Pa., 106, 114, that a party plaintiff in a proceeding of the nature which we are now considering may be asked on cross-examination the price he paid for the property, where the time of the purchase was not too remote from the time of the taking."

The Greenfield case is on all-fours with the instant case. The Greenfield case and the Rea case once again reiterate that an owner may be asked on cross-examination the price he paid for his property, where the time of the purchase was not too remote from the time of the taking. It also disposes of and completely refutes appellee's contention that a change in the character of the neighborhood and the great increase in value of properties therein between the time of purchase and the time of the taking is a sufficient ground for entirely excluding evidence of the purchase or sale price. Of course the owner has the right to explain or deny or rebut this evidence and to offer evidence of a change in the neighborhood or an increase in values of properties therein or any other relevant fact.

In East Brandywine & Waynesburg Railroad Co. v. Ranck, 78 Pa., supra, this Court reversed the Court below for excluding offers of plaintiff's declaration of what he valued his land at per acre, and what he was willing to take for it, and what he offered to sell it for two years before. Mr. Justice (later Chief Justice) PAXSON, speaking for the Court, said (pp. 456, 457): "The issue was as to the amount of damages caused to this particular property by the opening of the road. ... As evidence bearing upon the value of this property, Ranck's own declarations were certainly competent when offered by the company. His offer of it at a fixed price and a sale of a portion of it were

[ 380 Pa. Page 24]

    facts proper to go to the jury as constituting his estimate of its value."

In Rea v. Pittsburg & Connellsville Railroad Co., 229 Pa., supra, this Court reversed the lower Court because it refused to allow the owner to be cross-examined as to the cost of property purchased by him 2 years and 9 months prior to the condemnation, and said (page 116): "... in Henkel v. Terminal R.R. Co., 213 Pa. 485, 'The good faith of a witness and the accuracy and extent of his knowledge may be tested by questioning him as to particular sales, to ascertain whether he knew of and considered them in forming an opinion. These inquiries go directly to the value of the opinion expressed;' in Georgas v. Phila., H. & P. R.R. Co., 215 Pa. 501, 'The witness may be asked in cross-examination as to his knowledge of particular sales and the prices asked for property in the community for the purpose of testing his competency to testify; but such evidence in chief is clearly incompetent;' In Schronhart v. Penna. R.R. Co., 216 Pa. 224, 'Where the witness has testified to value, his good faith and accuracy and the extent of his knowledge may be tested on cross-examination by questioning him as to particular sales of property similarly situated to ascertain whether he knew of them and considered them in forming an opinion.' The objection to the admission of testimony of particular sales is placed upon the theory that it would lead to the investigation of 'collateral issues as numerous as the sales:' Pittsburg, etc., R.R. Co. v. Rose, 74 Pa. 362. It is plain that this does not apply to the admission of testimony concerning a single sale of the very property in controversy."

The cross-examination sought and the evidence offered by the Authority was particularly allowable, competent and relevant in the present case because West Brown, a ...


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