Appeal from judgments of Court of Common Pleas of Lackawanna County, Sept. T., 1964, No. 2, in case of Thomas Hoffman, Catherine Hoffman, his wife, and Gerard X. Powell v. Commonwealth of Pennsylvania.
Edward D. Werblun, Assistant Attorney General, with him Michael R. Deckman, Assistant Attorney General, John R. Rezzolla, Deputy Attorney General, and Walter E. Alessandroni, Attorney General, for Commonwealth, appellant.
James E. O'Brien, with him Joseph J. Cimino, for appellee.
William P. Farrell, with him Jerome P. Casey, for appellee.
Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Dissenting Opinion by Mr. Justice Cohen. Mr. Justice Jones joins in this dissenting opinion.
Catherine Hoffman is the owner of land*fn1 in Lackawanna County comprising approximately 4.6 acres. Improvements thereon include a large drive-in restaurant and a private residence. A portion of the land leased to Gerard X. Powell was used since 1959 for the maintenance and operation of a commercial miniature golf course.
On January 9, 1963, approximately .98 of an acre of the Hoffman land was taken by the Commonwealth in eminent domain proceedings. Included in the condemned portion was the entire section used for the Powell golf course.
The board of view awarded damages totaling $36,500, which included $26,000 for the freehold interest and $10,500 for the lessee's interest. Both the Commonwealth and Powell appealed. The issue was then tried de novo before a jury in the court of common pleas on September 14, 1964. The jury returned a verdict for the claimants totaling $48,500; including $35,000 damages for the owner and $13,500 for the lessee. Judgments on the verdict were duly entered and the Commonwealth filed one joint appeal.
The Commonwealth contends that serious trial errors and an excessive verdict require the grant of a new trial.
The first assignment of error concerns the refusal of the trial court to grant a requested mistrial, because during the trial the local newspapers published news accounts thereof and mentioned therein the amount of damages reportedly awarded the claimants by the board of view. The Commonwealth argues that this made available to the jury prejudicial information that was inadmissible at trial. (See, Act of June 22, 1964, P. L. 84, No. 6, § 703, 26 P.S. § 1-703 (Supp. 1965)).*fn2 This argument is devoid of merit.
There is nothing in the record to show that any of the jurors read the news articles involved. They were not polled by the Commonwealth's counsel, despite ample opportunity to do so. Further, the news accounts were innocuous, non-inflammatory, ...