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MORRISSEY v. DEPARTMENT HIGHWAYS (01/20/67)

decided: January 20, 1967.

MORRISSEY, APPELLANT,
v.
DEPARTMENT OF HIGHWAYS



Appeal from judgment of Court of Common Pleas No. 3 of Philadelphia County, Dec. T., 1964, No. 2883, in case of James D. Morrissey, Mary F. Morrissey, his wife, and James D. Morrissey, Inc. v. Commonwealth of Pennsylvania, Department of Highways.

COUNSEL

Louis F. Floge, with him Schnader, Harrison, Segal & Lewis, for appellants.

George R. Specter, Assistant Attorney General, with him John E. Walheim, Special Assistant Attorney General, Robert W. Cunliffe, Assistant Attorney General, John R. Rezzolla, Deputy Attorney General, and Edward Friedman, Attorney General, for Commonwealth, appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Chief Justice Bell concurs in the result. Dissenting Opinion by Mr. Justice Cohen.

Author: Jones

[ 424 Pa. Page 89]

This appeal lies from the entry of a judgment on a verdict rendered in a condemnation case in the Court of Common Pleas of Philadelphia County. While the appellant-condemnees raise alleged trial errors, the real thrust of their argument is that, by reason of such errors, a totally inadequate verdict resulted.

James B. Morrissey and Mary Morrissey, his wife, were the owners of, and James B. Morrissey, Inc., was the lessee of, [condemnees], a 22.17 acre tract of land located on the southeasterly side of Frankford Avenue between Linden and Carwithan Avenues in Philadelphia. Functionally, this tract consisted of two parcels: one parcel [Parcel 1] --, consisting of approximately 17 acres located where the tract adjoins Carwithan Avenue --, is used as the office, equipment yard and place of business of the lessee-condemnee; the other parcel [Parcel 2] --, consisting of approximately 4.5 acres located where the tract adjoins Linden Avenue --, is zoned for residential purposes and not used by the lessor-condemnees.

Two driveways gave access to Parcel 1 from Frankford Avenue but, by reason of Parcel 2 being zoned for residential purposes, no access was available to Parcel 1 from Linden Avenue. In 1910, by ordinance, Carwithan Avenue was legally opened by the City as a street. However, Carwithan Avenue was not paved, graded or physically improved as a street; a fence had been erected by condemnees along the Carwithan Avenue side of Parcel 1 in which fence there was a gate -- not regularly used -- offering access to Carwithan Avenue.*fn1

[ 424 Pa. Page 90]

On November 30, 1960 -- in connection with the construction of an exit from the Delaware Expressway -- the Commonwealth of Pennsylvania condemned a portion of Parcel 1. The land actually taken consisted of .67 acres of that portion of Parcel 1 which adjoined Carwithan Avenue and extended from Frankford Avenue to the southeasterly limit of condemnees' property and, by reason of such taking, no access whatsoever was available from Parcel 1 to Carwithan Avenue.*fn2

After a trial in Court of Common Pleas No. 10 of Philadelphia County, the jury returned a verdict for condemnees in the amount of $36,400, consisting of property damages of $28,000 plus $8400 detention damages. Motion for a new trial having been refused, judgment was entered on the verdict.

Condemnees present four issues on this appeal: (a) that the trial court erred in charging the jury that condemnees had the burden of proving that the amount of damages was greater than the Commonwealth's evidence showed; (b) that the trial court erred in admitting into evidence testimony of Commonwealth experts who considered Carwithan Avenue a "paper street" the access rights to which were of slight value and then refused to instruct the jury that, even though the access rights may not have been used or regularly used, the taking resulted in recoverable damages; (c) that the jury erred in disregarding the ...


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