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B. & K. v. COMMONWEALTH. (03/22/60)

March 22, 1960

B. & K., INC., APPELLANT,
v.
COMMONWEALTH.



Appeal, No. 17, May T., 1960, from judgment of Court of Common Pleas of York County, Jan. T., 1959, No. 165, in case of B. & K., Inc. v. Commonwealth of Pennsylvania, Department of Highways. Judgment reversed. Proceedings on appeal from award of viewers in condemnation. Before ANDERSON, P.J., and a jury. Verdict for plaintiff in amount of $11,100, plaintiff's motion for new trial overruled and judgment entered on the verdict. Plaintiff appealed.

COUNSEL

Lavere C. Senft, with him Cohen and Senft, for appellant.

Frank Edward Roda, Assistant Attorney General, with him John R. Rezzolla, Jr., Chief Counsel, Department of Highways, and Anne X. Alpern, Attorney General, for appellees.

Before Jones, C.j., Bell, Musmanno, Jones and Bok, JJ.

Author: Jones

[ 398 Pa. Page 519]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

In this eminent domain proceeding appellant claims that the court below erred in permitting the admission into evidence of certain testimony at the trial.

On May 21, 1953, B. & K., Inc.,*fn1 the appellant purchased a 57 acre tract of land situated in York County, a tract which parallels Route 111 connecting Harrisburg and York. On or about May 7, 1957 the Commonwealth of Pennsylvania converted Route 111 into a "limited access" highway and, as a result thereof, the

[ 398 Pa. Page 520]

    only access available to appellant's land was at the "southern extreme" of such land. The Commonwealth condemned a strip of appellant's land 1900 feet in length and 10 feet in width along this highway, i.e., that portion of the land which fronted on the highway.

On November 19, 1958, the Court of Common Pleas of York County, upon the Commonwealth's petition, appointed a board of view. From an award made by this board of view the Commonwealth appealed to the Court of Common Pleas of York County wherein a jury awarded appellant damages in the amount of $11,100. Upon the entry of judgment upon this verdict the present appeal was taken.

During the trial the Commonwealth called, as of cross-examination, John Bucher, appellant's president. Bucher was asked whether, on behalf of appellant, he had filed a capital stock tax return for 1957; and, upon an affirmative response to that question, Bucher identified the capital stock tax return particularly with reference to the figure of $59,939 set forth therein as "actual value" of the tracts of land therein contained. Bucher was then questioned concerning fourteen separate tracts of land allegedly owned by appellant; he stated that appellant only owned four tracts and part of a fifth tract of land in addition to the land presently involved. The capital stock tax return itself was not received in evidence. Such cross-examination of Bucher was over appellant's objection.

In its admission of such testimony the court below relied on Graham Farm Land Co. v. Commonwealth, 363 Pa. 571, 70 A.2d 219. In our view, Graham does not control the present situation and must be restricted to the factual situation therein presented. In both Graham and the instant case it is true that the "actual value" set forth in ...


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