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OLSON & FRENCH v. COMMONWEALTH (04/19/60)

April 19, 1960

OLSON & FRENCH, INC.
v.
COMMONWEALTH, APPELLANT.



Appeal, No. 320, Jan. T., 1959, from judgment of Court of Common Pleas No. 2 of Philadelphia County, Dec. T., 1956, No. 4852, in case of Olson & French, Inc. v. Commonwealth of Pennsylvania. Judgment affirmed; reargument refused May 20, 1960.

COUNSEL

Wanda P. Chocallo, Assistant Attorney General, with her Anne X. Alpern, Attorney General, for Commonwealth, appellant.

Lewis M. Stevens, with him J. Barton Harrison, and Stradley, Ronon, Stevens & Young, for appellee.

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

Author: Jones

[ 399 Pa. Page 268]

OPINION BY MR. CHIEF JUSTICE JONES.

The Pennsylvania Department of Forests and Waters, acting pursuant to statutory authority*fn* condemned, for State Park purposes as part of the Independence Mall project, the premises located at 20 North 5th Street, Philadelphia, upon which was erected a five-story building with basement. The property was owned and occupied by Olson & French, Inc., as a warehouse for the storage of cotton goods, dealt in by the owner at wholesale.

A board of view awarded the owner $37,800 as damages for the property which was taken in its entirety. The Commonwealth appealed the award to the court of common pleas. The valuation testimony adduced at the ensuing jury trial came from one real estate expert for the plaintiff company, who appraised the property at $43,700, and two real estate experts for the Commonwealth, who separately appraised it at $17,650 and $18,424. The jury returned a verdict for the plaintiff in the sum of $35,179.92, made up of $31,000 for the value of the property at the time of the appropriation and $4,179.92 as damages for detention of payment. The Commonwealth moved for a new trial, which the court en banc denied. From the judgment entered on the verdict, the Commonwealth has appealed.

The assignment of error upon which the appellant principally relies is the trial court's refusal to admit in evidence the plaintiff company's capital stock tax return for the period covering the date of the condemnation of the property. The purpose of the offer was

[ 399 Pa. Page 269]

    designed to introduce in evidence the company's low valuation of the property as shown on its capital stock tax return. As authority for the reception of the return in evidence, the Commonwealth's counsel cited Graham Farm Land Co. v. Commonwealth, 363 Pa. 571, 70 A.2d 219. The real justification for the admission of the capital stock tax return in the Graham case resided in the fact that the claimant corporation, which incidentally was engaged in the real estate business, was owned by one man who alone was responsible for the tax return showing an actual value for the whole of the corporation's real estate holdings, consisting of the condemned property and an additional extensive lot plan development, at a sum less than what the corporate owner was claiming for only the property condemned. In a very real sense, the capital stock tax return in the Graham case constituted an admission against interest on the part of the sole stockholder and verily impeached the integrity of his claim. The applicability of our ruling in the Graham case with respect to the admissibility of a corporation's capital stock tax return in a condemnation proceeding has been appropriately restricted to the peculiar facts of that case. See B. & K., Inc. v. Commonwealth, 398 Pa. 518, 159 A.2d 206.

In a case such as the present, where the claimant corporation is not owned by a single stockholder so far as the record discloses, it would be improper to use the declarations of an officer of the corporation as to the value of appropriated property in order to determine the amount of damages to be paid the corporation for its land taken unless such declarant corporate officer is himself called as a witness by the corporation to testify as to the value of its condemned property. In such event the ...


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