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LENIK CONDEMNATION CASE. (06/26/61)

June 26, 1961

LENIK CONDEMNATION CASE.


Appeal, No. 121, Jan. T., 1961, from order of Court of Common Pleas of Delaware County, March T., 1960, No. 2060, in re condemnation of certain interests in lands of John Lenik and Annelia Lenik. Order affirmed.

COUNSEL

Walter T. ReDavid, with him ReDavid, Sparks & Orlowsky, for appellants.

Edward F. Cantlin, with him J. H. Ward Hinkson, Vincent P. McDevitt, and Robert P. Garbarino, for appellee.

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

Author: Bok

[ 404 Pa. Page 258]

OPINION BY MR. JUSTICE BOK.

The Philadelphia Electric Company, having power of eminent domain, condemned certain interests of Mr. and Mrs. Lenik in a strip of their land in Delaware County so that the company might string its wires. It did not take the fee but only a right of way 700 feet long and 150 feet wide, plus trimming rights in two other strips, each 50 feet wide and lying along each side of the right of way so that it could prevent growing things from damaging the wires.

The parties failed to reach agreement about purchase and viewers were appointed on the company's

[ 404 Pa. Page 259]

    petition to assess damages. The award of the viewers was $7400 and both parties appealed to the court below, which empanelled a jury and tried the case. The jury gave the Leniks $13,500 and the company filed motions for judgment n.o.v. and for a new trial, the latter of which was granted for the reason that the verdict was against the weight of the credible evidence. It may be noted that the award of $7400 included damages for delay in payment while the verdict of $13,500 did not: this was proper enough, since there is evidence that Mr. Lenik threatened to blow up the company's installations and shoot its personnel. However, the company offered its bond, which Mrs. Lenik accepted, and the company entered the property and made its installations without incident. The property owners appealed to us.

One of the least assailable reasons for granting a new trial is the lower court's conviction that the verdict was against the weight of the evidence and that new process was dictated by the interests of justice. With reasons for this action given or appearing in the record, only a palpable abuse of discretion will cause us to overturn the court's action: Bellettiere v. Philadelphia, 367 Pa. 638, 81 A.2d 857; Elza v. Chovan, 396 Pa. 112 (1959), 152 A.2d 238; Burd v. Pennsylvania Railroad Co., 401 Pa. 284 (1960), 164 A.2d 324. And it is our duty to review the evidence to see whether error or injustice appears: Nikisher v. Benninger, 377 Pa. 564 (1954), 105 A.2d 281.

When so flensed, the record fully supports the court's action.

The weak point in the case involves the evidence of value before and after condemnation. Mrs. Lenik, as owner, testified to value of $35,000 before the taking, and $20,000 or $21,000 after taking, or damages of $14,000 or $15,000. The professional ...


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