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THOMPSON ET UX. v. COMMONWEALTH (06/13/69)

decided: June 13, 1969.

THOMPSON ET UX., APPELLANTS,
v.
COMMONWEALTH, DEPARTMENT OF HIGHWAYS



Appeal from judgment of Court of Common Pleas of Clarion County, May T., 1967, No. 5, in case of Robert S. Thompson et ux. v. Commonwealth of Pennsylvania.

COUNSEL

H. Ray Pope, Jr., for appellants.

Albert W. Johnson, III, Assistant Attorney General, with him William C. Sennett, Attorney General, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Montgomery, J. Watkins, J., dissents.

Author: Montgomery

[ 214 Pa. Super. Page 331]

This appeal requires an interpretation of Section 705, Art. VII, of the new Eminent Domain Code of 1964, Special Session, June 22, P. L. 84. The issue before us, as expressed by appellants, the property owners-condemnees, in their brief under Statement of Question Involved, is as follows: "1. May a valuation expert in an eminent domain case testify as to the dollar value of (a) land; (b) cost of adjustments; and (c) facts and data which he used in arriving at his opinion of the before and after values?"

The appellants were the owners of 76 acres, more or less, of land in Beaver Township, Clarion County, Pennsylvania, improved with a frame dwelling, barn, and outbuildings requisite to a farming operation. Part of this property was taken by the appellee for the construction of a portion of Interstate Route 80, otherwise known as the Keystone Shortway. Within the area taken were appellants' barn and a gas well belonging to Fairman Drilling Company of DuBois, Pennsylvania, from which appellants were taking gas for use in their home without charge. The Commonwealth capped or plugged the well after it had acquired it in these proceedings.

[ 214 Pa. Super. Page 332]

The Board of Viewers awarded to the condemnees damages in the amount of $7,700. The Commonwealth appealed. Thereafter, a jury in a trial presided over by Hon. Lloyd F. Weaver, President Judge, rendered a verdict in appellants' favor in the sum of $6,000, exclusive of interest. From the refusal of the condemnees' motion for a new trial and the entry of judgment on the verdict, they appealed.

The thrust of appellants' main argument is that they were wrongfully denied the right to ask expert witnesses on either direct or cross-examination, the following question, viz., "Would you break down for us in dollars the various data and facts which you considered, not as special items of damage but as they related to before and after value?" Particularly, an expert for the Commonwealth was asked on cross-examination whether he had placed a dollar value on the Christmas tree area of appellants' land and what value per acre he had applied; also whether he had applied a dollar value to damages due to physical conditions such as erosion, drainage, etc.

Prior to the Eminent Domain Code of 1964 the law was well established that such questions were improper, Hasenflu v. Commonwealth, 406 Pa. 631, 179 A.2d 216 (1962); McSorley v. Avalon Borough School District, 291 Pa. 252, 139 A. 848 (1927); except when they sought to elicit the cost figures in estimating necessary construction work required to utilize the remaining land, and then not as distinct items of damages but as elements bearing on the before and after values of a particular exercise of the right of eminent domain. Mott v. Commonwealth of Pennsylvania, Department of Highways, 417 Pa. 426, 207 A.2d 872 (1965).*fn1 Also see Pittsburgh Terminal Warehouse & Transfer Company v. Pittsburgh, 330 Pa. 72, 198 A. 632 (1938).

[ 214 Pa. Super. Page 333]

Under Section 705, Art. VII, of the 1964 Code, it appears clear that the Legislature intended to enlarge the scope of permissible inquiry into the preparation made by a real estate expert to give an opinion as to the before and after values of a subject property.*fn2 A qualified real estate expert may now state all facts or data which he considered in arriving at his opinion. (§ 705(1)) Whereas the Act of 1915, P. L. 159, permitted qualified witnesses in eminent domain cases to state in detail, and costs, all elements of benefit or damage which they had taken into consideration in arriving at their before and after values, the 1964 Act changed this in § 705(1) to read, "facts and data", but omits "costs". Appellants contend the new act is broad enough to include an evaluation of the various elements considered by the expert. We do not agree. This was not permitted before 1964 and § 705(1) does not expressly allow it to be done. Statutes are never presumed to make innovations in the rules or principles of the common ...


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