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DURIKA v. DERRY TOWNSHIP SCHOOL DISTRICT. (09/29/64)

September 29, 1964

DURIKA, APPELLANT,
v.
DERRY TOWNSHIP SCHOOL DISTRICT.



Appeal, No. 110, March T., 1963, from judgment of Court of Common Pleas of Westmoreland County, Oct. T., 1958, No. 362, in case of Steve J. Durika and Mary C. Durika, his wife, v. School District of Derry Township. Judgment affirmed.

COUNSEL

Edward S. Stiteler, for appellants.

Robert J. Milie, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Bell

[ 415 Pa. Page 481]

OPINION BY MR. CHIEF JUSTICE BELL

On November 1, 1958, the School District of Derry Township condemned for school purposes part of the

[ 415 Pa. Page 482]

    premises of Steve J. Durika and Mary C. Durika, his wife. A Jury of View awarded Mr. and Mrs. Durika damages in the sum of $13,500. Mr. and Mrs. Durika appealed, and in the trial before the Court of Common Pleas a jury awarded plaintiffs $13,400. The lower Court refused to grant a new trial and from the judgment entered on the verdict, plaintiffs took this appeal.

Plaintiffs allege inadequacy of the verdict and trial errors. The crux of their contention as to inadequacy is that the verdict did not contain any damages for detention. Mr. Durika testified that the property at the time of the taking had a value of $16,500; his expert witness testified its value was $15,500. One expert testified for the School District that the property had a value of $13,100 and its other witness valued the property at $13,400. Appellants contend that the jury's award obviously did not include detention damages and that an owner is entitled to detention damages as a matter of law.

Prima facie, a landowner, whose property is taken in eminent domain is entitled (1) to damages for the value of the property taken, and (2) also to "detention damages," i.e., damages for delay in payment. However, the right to damages for delay in payment in such cases may, of course, be lost if the cause for the delay is the fault of the property owner. Such fault may be evidenced by an unconscionable or excessive claim of damages by the owner of the property, or by his refusal to accept or negotiate a fair offer or settlement for the value of the property: Rednor & Kline, Inc. v. Department of Highways, 413 Pa. 119, 196 A.2d 355; Springer v. Allegheny County, 401 Pa. 557, 165 A.2d 383; Wolf v. Commonwealth, 403 Pa. 499, 502, 170 A.2d 557. However - and this very important point has been overlooked by appellants - a jury is not bound to accept the testimony of the owner or any expert

[ 415 Pa. Page 483]

    as to the fair market value of the property, and the jury is the fact finder of damages although its verdict is subject to review by the Court. Springer v. Allegheny County, 401 Pa. 557, 165 A.2d 383. Cf. also Commonwealth v. Kirkland, 413 Pa. 48, 58, 195 A.2d 338; Calabria v. Brentwood Motor Coach Company, 412 Pa. 486, 194 A.2d 918; ...


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