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SCAVO v. COMMONWEALTH PENNSYLVANIA (07/02/70)

decided: July 2, 1970.

SCAVO
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF HIGHWAYS, APPELLANT



Appeal from judgment of Court of Common Pleas of Lackawanna County, Sept. T., 1964, No. 1266, in case of Angelo Scavo et al. v. Commonwealth of Pennsylvania, Department of Highways.

COUNSEL

David A. Johnston, Jr., Assistant Attorney General, with him William C. Sennett, Attorney General, for Commonwealth, appellant.

Joseph E. Gallagher, with him O'Malley, Morgan, Bour & Gallagher, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Cohen. Mr. Justice Eagen concurs in the result solely for the reason that the trial court erred in permitting evidence of fair market value based on the price paid by the Commonwealth for another condemned property. Dissenting Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell joins in this dissenting opinion.

Author: Cohen

[ 439 Pa. Page 235]

This is an eminent domain action in which the Commonwealth is appealing from a judgment of the Court of Common Pleas of Lackawanna County.

A 10.94 acre tract on the northern side of Moosic Street in the City of Scranton belonging to Angelo and Frank Scavo, appellees, was condemned by the Department of Highways of the Commonwealth for the purpose of constructing Interstate I-81. This occurred on October 1, 1962, and on August 27, 1964 the Board of View, for which appellees had petitioned, awarded $39,000 plus detention damages. Both sides appealed this award, and a trial before a jury was held in the Court of Common Pleas of Lackawanna County. At trial appellees and their experts testified to a value of $95,000-$97,000 (about 20 cents per square foot) while the Commonwealth's experts testified to a value of $20,000-$23,500 (about 4-5 cents per square foot). On January 11, 1968 the jury returned a verdict of $55,000 plus detention damages. Judgment was entered in favor of appellees after denial of the Commonwealth's motion for a new trial.

The two issues before us relate solely to evidence the Commonwealth contends was improperly admitted over its timely objections. The Commonwealth, apparently relying on Community Housing Services, Inc. v. Pittsburgh Urban Redevelopment Authority, 435 Pa. 344,

[ 439 Pa. Page 236253]

A.2d 260 (1969), also attempts to relate the alleged errors with respect to the evidence to a claim of excessiveness of the verdict. Whatever may be the burden with respect to a verdict-winner, it is clear that a verdict-loser (the Commonwealth in this action) need only show reversible error with respect to the admission of/or the refusal to admit certain evidence and need not make any argument as to the size of the verdict.

The Commonwealth's first argument concerns the trial court's permitting Angelo Scavo and one of appellee's experts to testify over objection that $20,761.50 had been spent by appellees for excavating, leveling, blasting and hauling to improve the land. As to the testimony of Angelo Scavo, appellees argue that under § 704 of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P. L. 84, Art. VII, as amended, 26 P.S. § 1-704 (Supp. 1970)*fn1 a condemnee may testify as to just compensation without being qualified as an expert and that he may enumerate the elements he considered in arriving at his valuation. Hoffman v. Commonwealth, 422 Pa. 144, 221 A.2d 315 (1966). While that is true, the record discloses that Scavo did not testify as to the cost of improvements when listing the factors he took into consideration in making his valuation but rather prior to that and in a manner unrelated to that. When asked what elements he did consider, Scavo listed the location of the property, the many uses to which it could be put and the price paid his neighbor.

In Pittsburgh Terminal Warehouse & Transfer Company v. Pittsburgh, 330 Pa. 72, ...


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