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WOLF v. DEPARTMENT HIGHWAYS (06/24/66)

decided: June 24, 1966.

WOLF
v.
DEPARTMENT OF HIGHWAYS, APPELLANT



Appeal from judgment of Court of Common Pleas of Cumberland County, Sept. T., 1963, No. 953, in case of John E. Wolf and Irene D. Wolf, his wife v. Commonwealth of Pennsylvania, Department of Highways.

COUNSEL

William R. Mosolino, 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.

Robert E. Myers, with him Gurney B. Ruby, Jr., for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones.

Author: Jones

[ 422 Pa. Page 36]

John E. Wolf and Irene D. Wolf, [Wolf], own a tract of land located on the northerly side of U. S. Route 11 -- an east-west highway -- in Hampden Township, Cumberland County. This land -- which had a 200' frontage along Route 11 and extended northward a depth of 400' -- was improved with a gasoline service station, a seven-unit motel, an office and Wolf's residence. Access to the Wolf property was by means of a driveway which proceeded from Route 11 along the easterly property line in a northerly direction and then curved westerly into the property.

On and subsequent to September 9, 1958, the Commonwealth, acting through the Department of Highways, in connection with the transformation of Route 11 at a point in front of the Wolf property from a three-lane to a five-lane highway,*fn1 took certain steps which affected, either directly or indirectly, the Wolf property: (a) it condemned a rectangular portion -- 35-37' along Route 11 by 40' in depth -- of the southeast corner of the Wolf property; (b) it constructed a concrete curb along the highway for a distance of approximately 70' in front of the gasoline station; (c) at two points along the highway it provided for means of ingress to and egress from the Wolf property; (d) it erected two concrete dividers -- sometimes called divisor strips or medial dividers -- on the highway within the right of way of the Commonwealth to accommodate westbound traffic desiring to turn south.*fn2 Neither

[ 422 Pa. Page 37]

    that portion of the property actually taken nor the curbing constructed along the highway are directly at issue on this appeal.

A board of view awarded Wolf $6204 -- $4800 damages plus $1404 detention damages. On Wolf's appeal to the Court of Common Pleas of Cumberland County, the jury returned a verdict of $23,187.50 -- $17,500 damages plus $5687.50 detention damages.

At the trial, the trial judge permitted Wolf to introduce testimony as to the presence of the dividers on the highway in front of the property. Wolf presented the plot plan of construction of the Commonwealth, oral testimony as to the effect of the construction of such dividers on traffic in the eastbound lanes desiring to enter Wolf's property and opinion evidence as to the effect on the after value of the Wolf property of the diversion of eastbound traffic by reason of the construction and location of the dividers on the highway. To the introduction of such testimony the Commonwealth objected at trial*fn3 and, after the jury verdict, again raised the question of the admissibility of such testimony in its motion for a new trial.

The court below, considering that the taking of a portion of the Wolf property and the construction of the medial dividers on the highway were integral parts of one and the same transaction, concluded that the fact of such divider construction and the impact of the location of such dividers upon the diversification of eastbound ...


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