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MORRISSEY v. COMMONWEALTH (10/09/70)

decided: October 9, 1970.

MORRISSEY
v.
COMMONWEALTH, DEPARTMENT OF HIGHWAYS, APPELLANT



Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1964, No. 2883, in case of James D. Morrissey et al. v. Commonwealth of Pennsylvania, Department of Highways.

COUNSEL

Alexander V. Sarcione, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and William C. Sennett, Attorney General, for Commonwealth, appellant.

Louis F. Floge, with him Michael Sklaroff, and Schnader, Harrison, Segal & Lewis, for appellees.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones.

Author: Jones

[ 440 Pa. Page 73]

This is an appeal in an eminent domain proceeding from an order dismissing the Commonwealth's motion for a new trial, sustaining the verdict of the jury and entering judgment thereon. The underlying facts in the condemnation case have already been discussed at length in our earlier opinion in Morrissey v. Dep't. of Hwys., 424 Pa. 87, 89-90, 225 A.2d 895, 896 (1967), and need not be reiterated. In Morrissey, we reversed the entry of judgment on the verdict and mandated a new trial. Essentially we are concerned with the sequence of events that have transpired in the proceedings below following our ruling that now lead to this second appeal.

In accordance with the opinion in Morrissey, a new trial was held, resulting in a jury verdict on October 19, 1967, for condemnees in the amount of $99,400, consisting of severance damages in the sum of $70,000 plus $29,400 detention damages. A second judge heard the Commonwealth's argument in support of its motion for a new trial on August 8, 1968, and the aforementioned order denying the motion was entered on November 7, 1969. This appeal followed.

Several reasons are advanced by the Commonwealth as justification for a new trial: (1) the verdict was

[ 440 Pa. Page 74]

    against the evidence, the weight of the evidence and the law; (2) the verdict was excessive; (3) the trial judge erred in denying two of the Commonwealth's points for charge; (4) the trial judge erred in his failure to withdraw a juror and declare a mistrial after it was discovered that the forelady of the jury had a conversation with one of appellees' witnesses; and (5) the trial judge erred in not correcting his charge sufficiently so as to avoid confusion in respect to a view being evidentiary. The additional facts necessary for a complete understanding of these issues will be developed herein.

In respect to the first contention, the Commonwealth does not deny that the appellees-condemnees are entitled to a verdict in their favor since the only matter for the jury to determine was the amount of damages. Sterner v. Commonwealth, 325 Pa. 326, 190 A. 891 (1937). Insofar as it is argued the extent of damages was exaggerated, i.e., excessive, and that the charge misled the jury into a consideration of improper items of damages, these issues will be discussed infra. However, it is also suggested that the charge did not give a "balanced review of the testimony." Besides our belief that the charge was fair and impartial, we note that, despite the trial judge's request for points of correction, no disagreement whatsoever was voiced by the Commonwealth to the content of the trial judge's narration of the evidence presented. As we indicated in Lobalzo v. Varoli, 422 Pa. 5, 220 A.2d 634 (1966), a new trial should not be granted based on general allegations of prejudice in the charge when any such prejudice could have been promptly eliminated by an indication of disagreement on the part of counsel. This contention is singularly without merit.

Secondly, we must consider whether the verdict was excessive. It must be ...


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