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MCCONN v. COMMONWEALTH (10/16/68)

decided: October 16, 1968.

MCCONN
v.
COMMONWEALTH, DEPARTMENT OF HIGHWAYS, APPELLANT



Appeal from order of Superior Court, April T., 1967, No. 205, affirming order of Court of Common Pleas of Washington County, Feb. T., 1964, No. 467, in case of Richard J. McConn et ux. v. Commonwealth, Department of Highways.

COUNSEL

Davis G. Yohe, with him Guy S. Mamolito, for appellant.

Francis H. Patrono, with him Robert D. Beck, and Patrono, Ceisler & Edwards, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Opinion by Mr. Chief Justice Bell, Dissenting in Part and Concurring in the Result. Mr. Justice Musmanno and Mr. Justice O'Brien join in this Opinion.

Author: Jones

[ 431 Pa. Page 575]

The basic issue on this appeal is whether the grant of a new trial in this eminent domain proceeding on the ground that the jury's "verdict [was] against the weight of credible evidence and thus [was] inadequate" constituted an abuse of judicial discretion.

On April 6, 1961, the Commonwealth, for the purpose of constructing a limited access highway known as Interstate Route 70, condemned 4.643 acres of an 80.556 acre tract of land located in Donegal Township, Washington County, and owned by Richard J. McConn and Mary McConn, his wife. This tract of land was used for dairy farm purposes and improved with a dwelling house, two barns, a milk house and several corn cribs none of which were affected by the taking.

Prior to the taking about 12 acres of McConns' land abutted on Route 40, was reasonably level and fronted on the highway for a distance of about 800 feet. Part of the taking of the 4 plus acres was in this 12 acre tract.*fn1 In addition to the piece of land taken from the 12 acre tract, "several other pieces of this farm were condemned: (1) a small tract required for a channel

[ 431 Pa. Page 576]

    change, (2) a strip on the eastern side of the farm required to relocate the secondary road leading to Dutch Fork Lake, (3) a strip required to relocate National Highway Route 40, made necessary to provide access for the properties that formerly abutted the old Route 40. This new access road, in turn, severed plaintiffs' farm into two pieces for the first time, causing damage, also, by way of removal and relocation of fences."*fn2

After efforts to effect an amicable settlement of the damages had failed, McConns petitioned for the appointment of a board of view and the Court of Common Pleas of Washington County appointed such a board. After hearing, the board made an award to McConns of $11,000 and from that award the Commonwealth appealed to the Court of Common Pleas of Washington County. In that court two jury trials took place; after the first trial the jury returned a verdict of $4860*fn3 and the court, on McConns' motion, set aside this verdict and granted a new trial;*fn4 after the second trial the jury returned a verdict of $6,350*fn5 and the court, on McConns' motion, again set aside the verdict and granted a new trial.*fn6 The propriety of that order is the basis of the instant appeal.*fn7

Our analysis of the majority opinion in the court below indicates that the court was motivated to grant a new trial because it believed the verdict was against

[ 431 Pa. Page 577]

    the "weight of credible evidence" and, thus, inadequate, that the jury failed to accord to the land prior to the taking any commercial value and that the jury must have been influenced by the Commonwealth's expert witnesses who, ...


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