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ROTHMAN v. COMMONWEALTH (01/02/62)

January 2, 1962

ROTHMAN
v.
COMMONWEALTH, APPELLANT.



Appeal, No. 5, May T., 1962, from judgment of Court of Common Pleas of Dauphin County, Sept. T., 1959, No. 1643, in case of George Rothman and Dorothy K. Rothman v. Commonwealth of Pennsylvania. Judgment affirmed; reargument refused March 22, 1962.

COUNSEL

David E. Abrahamsen, Deputy Attorney General, with him Donald Blanken, Assistant Attorney General, and David Stahl, Attorney General, for Commonwealth, appellant.

Bruce E. Cooper, with him David S. Kohn, for appellees.

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

Author: Musmanno

[ 406 Pa. Page 377]

OPINION BY MR. JUSTICE MUSMANNO

Prior to June 2, 1958, George Rothman and Dorothy K. Rothman, the plaintiffs in this case, owned 156 acres of farmland in Lower Paxton Township, Dauphin County, with a thoroughfare known as Locust Lane, 33 feet wide, running through it. In keeping with the modern trend of attempting to convert the rural world into a residential paradise, the Rothmans engaged, in the spring of 1956, a registered surveyor to make up a plot plan, looking toward preparing their land for building purposes. By the fall of 1956, people were asking Rothman about purchasing lots on his anticipated residential domain.

Then, on June 22, 1958, the Commonwealth suddenly brought to an end the aspirations of the Rothmans with regard to their residential enterprise by condemning 2.8 acres in the heart of the locale of the enterprise, together with tidings of a widening of Locust Lane from 33 feet to 60 feet, changing its grade, installing drainage ditches, building guard rails and so on. In cutting out the widened highway, it developed that the Rothmans would have on their hands two useless triangles of earth so isolated and so shaped that they could not be utilized either for building or farming purposes.

The board of viewers appointed by the Court of Common Pleas of Dauphin County to determine what the Rothmans would suffer because of this Commonwealth highway program, awarded them $19,000. The

[ 406 Pa. Page 378]

Commonwealth felt that the Rothmans were being overpaid for what was taken and appealed to the court of common pleas for a jury trial. The jury surprised the Commonwealth with an even higher award ($23,500) and it appealed.

It now asks for a new trial on the contention that the jury awarded the large sum since it was misled in its deliberations because the trial court allowed the plaintiffs to introduce at the trial a plan of the proposed lots with its proposed subdivision of the property. The Commonwealth charges that the trial court further erred in permitting the introduction of still another plan, which, superimposed over the first plan, revealed how the lots were affected by the proposed new highway. All this, the Commonwealth submits, gave the jury an incorrect standard by which to appraise damages and permitted them to speculate on what the proprietors lost because of non-fulfillment of their building program.

It is, of course, elementary in condemnation cases that the loss suffered by the property owner represents the difference between the market value of his land prior to the taking and the market value of the land after the taking. The property owner is not allowed to claim as damages the profits he might have gathered had he been allowed to effectuate some imaginary project for a financial bonanza. On the other hand it is only just that he be permitted to show what was the best and highest use of his land and what he lost because he was deprived of the opportunity to so use his land. The plaintiffs presented three expert witnesses who all ...


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