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WOLF v. COMMONWEALTH (05/02/61)

May 2, 1961

WOLF
v.
COMMONWEALTH, APPELLANT.



Appeal, No. 288, Jan. T., 1960, from judgment of Court of Common Pleas No. 2 of Philadelphia County, Dec. T., 1956, No. 4852, in case of Robert B. Wolf v. Commonwealth of Pennsylvania. Judgment affirmed; reargument refused May 24, 1961.

COUNSEL

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

Abraham L. Freedman, with him Michael L. Temin, Louis J. Goffman, and Wolf, Block, Schorr & Solis-Cohen, for Commonwealth, appellee.

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

Author: Jones

[ 403 Pa. Page 500]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

On December 26, 1956, the Commonwealth of Pennsylvania, acting through the Department of Forests and Waters, condemned for state park purposes certain properties located on 5th, 6th, Commerce and Cuthbert Streets in Philadelphia of which Robert B. Wolf was the record owner.

On January 23, 1957, a board of view was appointed to assess the damages to these properties; after hearing, the board on April 25, 1958 awarded Wolf $415,800, an amount which included damages as compensation for delay in payment. On May 23, 1958, Wolf appealed to the Court of Common Pleas No. 2 of Philadelphia County alleging that the board's award was inadequate.

[ 403 Pa. Page 501]

The matter was then heard de novo before President Judge SLOANE and a jury and, at trial, the court submitted to the jury two questions: (1) the value of Wolf's properties at the time of taking and (2) whether Wolf was entitled to any detention damages. The jury by its verdict fixed the value of these properties at the time of taking at $355,000 and found that Wolf was not entitled to any detention damages.

Wolf then filed motions for a new trial and for judgment n.o.v., the latter motion being premised on the ground that the trial court on the state of the record should have directed the jury to award detention damages at the rate of 6% per annum. The court below refused the motion for a new trial, granted the motion for judgment n.o.v. and entered judgment in favor of Wolf and against the Commonwealth in the amount of $421,917.50. The amount of this judgment was composed of the value of the properties as fixed by the jury - $355,000 - together with detention damages of $66,917.50. The judgment as entered by the court awarded detention damages from the date of the taking up to the date of the entry of judgment (February 17, 1960) not up to the date of the jury's verdict (November 5, 1959) and furthermore, provided for interest at six (6%) percent per annum from the time of its entry to the time of final payment.*fn1 From that judgment the Commonwealth has taken this appeal.

The Commonwealth contends: (1) that Wolf forfeited any right to detention damages by reason of excessive and unreasonable demands on his part; (2) that, even ...


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