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PRICE v. COMMONWEALTH (03/18/65)

decided: March 18, 1965.

PRICE
v.
COMMONWEALTH, APPELLANT



Appeal from order of Court of Common Pleas of Susquehanna County, April T., 1963, No. 133, in case of George Price v. Commonwealth of Pennsylvania.

COUNSEL

Edward D. Werblun, Assistant Attorney General, with him John R. Rezzolla, Chief Counsel, Department of Highways, and Walter E. Alessandroni, Attorney General, for Commonwealth, appellant.

Robert G. Dean, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Watkins, J.

Author: Watkins

[ 205 Pa. Super. Page 143]

This is an appeal by the Commonwealth from an order of the Court of Common Pleas of Susquehanna County, awarding a new trial to George Price, the appellee, in a land condemnation case.

The Commonwealth of Pennsylvania, Department of Highways, under the power of eminent domain, condemned the land of George Price to be used in the construction of Interstate 81, known locally as the "Penn-Can" Highway. The affected tract consisted of approximately 18 to 20 acres of land of which approximately 7 acres were taken and 7 acres severed.

The Board of View awarded appellee $27,166. The Commonwealth appealed and after trial, the jury returned a verdict in favor of the appellee, in the amount of $6800. The appellee's motion for a new trial was granted. This appeal followed.

The questions raised by the motion for a new trial were: (1) Was the verdict inadequate? and (2) Did the Court err in excluding the testimony of George Price, the owner, as to the fair market value of his property?

We will not discuss the question of adequacy as we are convinced that the award of a new trial by the court below on the ground of the exclusion of the owner's testimony was not an abuse of discretion. It is well settled that the grant or refusal of a new trial is discretionary with the court below and its action will not be disturbed by the reviewing court in the absence of a manifest or palpable abuse of discretion. McArthur v. Balas, 402 Pa. 116, 166 A.2d 640 (1961).

An examination of the opinion of President Judge Little of the court below discloses a strong feeling on his part that error was committed in striking out the testimony of the owner as to the fair market value of

[ 205 Pa. Super. Page 144]

    the property so that in the interest of justice a new ...


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