Appeal from order of Court of Common Pleas of Clearfield County, Sept. T., 1963, No. 161, in case of F. Cortez Bell, Sr. et al. v. C. A. Shetrom.
Anthony S. Guido, and Bell, Silberblatt & Swoope, and Gleason, Cherry & Guido, for appellants.
No argument was made nor brief submitted for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Jacobs, J.
[ 214 Pa. Super. Page 311]
On November 20, 1962, a tractor-trailer owned by appellee and driven by his employee ran off the highway and destroyed fourteen evergreen trees growing on appellants' land. In their complaint filed September 24, 1963, the appellants alleged the fault of appellee and claimed damages for fourteen trees at $40 for each tree plus $50 for removal of bricks which were scattered over the area, or a total of $610. The appellee entered an appearance and admitted his liability for the damage involved.
The case was subsequently submitted to compulsory arbitration under the Act of June 16, 1836, P. L. 715, as amended, 5 P.S. § 30 et seq., and the Rules of the Court of Common Pleas of Clearfield County. After a hearing, the arbitrators awarded $700 to the appellants. On September 27, 1964, the appellee appealed from the award. The appellants then moved to amend their complaint in regard to damages by showing the before and after value of the land on which the trees were located and increasing the ad damnum clause to $1500. They alleged that the statute of limitations had not run and that the appellee would not be prejudiced. A rule to show cause why the amendment should not be made was granted by the court on January 16, 1967.
[ 214 Pa. Super. Page 312]
On May 31, 1968, the court below refused the amendment and reversed the arbitrators' award on the ground that there was no authority to permit the amendment since it "injected into the case a claim distinct from that upon which trial was had." The court held that since the amendment was not allowed the appellant had not pleaded or proved a proper measure of damages, and therefore could not recover. This appeal is from the order of May 31, 1968, which seems to rather effectively put appellants out of court.
We have grave doubts that damage to trees can be ascertained only by showing the before and after value of the land on which the trees were growing. In Ribblett v. Cambria Steel Co., 251 Pa. 253, 96 A. 649 (1916), cited by the court below in support of its holding, the Supreme Court stated that there may be instances when the evidence shows the trees in question to have a selling value separate and apart from the land. Further, "[w]hether a tree is to be treated as a mere commodity, the value of which may be definitely estimated, or is to be considered as giving a value to the land upon which it grows . . . depends entirely upon circumstances." Norris v. Philadelphia, 49 Pa. Superior Ct. 641, 646 (1912). Whatever approach is most appropriate to compensate for the harm should be used, including perhaps the intrinsic value of the trees to the then existing use of the land or the cost of replacement or restoration. Even if the before and after value of the land is an appropriate measure of damages, evidence of the value of the trees themselves would be competent as indicative of the diminution in the value of the land. See generally Annot., 69 A.L.R. 2d 1335, §§ 15, 16 (1960), and cases there cited. When the court below refused the amendment, the appellants would still have had the right to show such unique value of the trees if the same existed. An appeal from
[ 214 Pa. Super. Page 313]
compulsory arbitration is tried de novo before the court and jury and plaintiffs are free to present such evidence as they may have whether it was presented before the arbitrators or not. Act of June 16, 1836, P. L. 715, § 27, as amended, 5 P.S. § 71; Lanigan v. Lewis, 210 Pa. Superior Ct. 273, 232 A.2d 50 (1967). For this reason appellants should not have been put out of court. Since appellants prefer another measure of damages, however, we will address ourselves to their efforts to amend their complaint to show the before and after value of the land.
We cannot understand the court's unwillingness to permit the requested amendment. Even if a new cause of action was introduced, and we do not think one was,*fn1 the six-year statute of limitations had not run and such amendments are freely ...