Appeal, No. 86, March T., 1958, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1957, No. 1368, in case of Brown & Vaughn Development Co. v. Commonwealth of Pennsylvania. Judgment affirmed.
Leonard M. Mendelson, Assistant Attorney General, with him Frank E. Roda, Assistant Attorney General, John R. Rezzolla, Jr., Chief Counsel, Department of Highways, and Thomas D. McBride, Attorney General, for appellant.
Henry E. Rea, Jr., with him Paul W. Brandt, and Brandt, Riester, Brandt & Malone, for appellee.
Before Jones, C.j., Bell, Musmanno, Arnold and Jones, JJ.
OPINION BY MR. JUSTICE MUSMANNO
The power of eminent domain is one of the most awesome as well as arbitrary rights of government. By it the State may take a citizen's property, whether or not he approves of the taking. However, the citizen has a right equally as awesome and that is, his government must pay him the value of the property taken. What represents that value sometimes develops into a legal controversy. It has so developed here.
In extending McKnight Road, a fine 80-foot boulevard carrying traffic from Pittsburgh into the beautiful North Hills area of Allegheny County, the Commonwealth found it necessary to condemn certain property belonging to Brown & Vaughn Development Company, because the course of the highway was cast through the very holdings of Brown & Vaughn. This company owned a 92.16-acre tract which it had laid out in lots for homes. In preparing the residential site, which it called Longvue Acres Plan No. 9, it levelled ground, cut, graded and paved roads, installed sewers and dug foundations for homes. In fact, by the time the Commonwealth appeared on the scene ready to plough through the very center of Longvue with bulldozers, the company had built 17 homes and was in the process of constructing 45 more. The bulldozer invasion meant the outright taking of 4.80 acres and the isolating mutilation of 9.21 acres more.
A Board of Viewers appointed to evaluate the plaintiff's loss awarded damages in the sum of $20,000. The Commonwealth appealed to the Court of Common Pleas
where a petit jury assessed the damages (together with detention money) to be $57,800. The Court reduced the verdict to $47,800, which reduction was accepted by the plaintiff. The Commonwealth of Pennsylvania appealed, asking for a new trial, assigning various reasons which we will consider seriatim.
In his opening address to the jury, plaintiff's counsel made the assertion that it was the Commonwealth which was dissatisfied with the award of the Board of Viewers and had taken the appeal to the Court of Common Pleas. Commonwealth's counsel objected and moved for the withdrawal of a juror. The Trial Judge instructed the jury to disregard the remark and explained that it did not matter which party appealed to the Court of Common Pleas: "Ladies and gentlemen, in a case of this character much of what counsel outlined is correct. However, it makes no difference who files a petition to have viewers appointed or who takes an appeal. Frequently they both take appeals. The Board of Viewers is an agency of the Court, an instrumentality of the Court; they do the preliminary work to help the Court along."
At the termination of the taking of testimony in the case the Trial Judge made the same error committed by plaintiff's counsel by stating: "This is an appeal by the defendant from an award by the Board of Viewers." When this was called to his attention, he admitted the mistake and instructed the jury: "I did say that, but it does not make any difference who takes the appeal. Frequently both do it. They have a right to have a jury decide it. Nobody knows what occurred ...