Appeal from the judgment of the Court of Common Pleas of Allegheny County, Civil Division, No. 1452, July Term, 1966, in case of Pittsburgh National Bank v. Urban Redevelopment Authority of Pittsburgh. Appeal transferred September 14, 1970, to the Commonwealth Court of Pennsylvania by the Supreme Court of Pennsylvania.
Thomas H. Welsh, with him William G. Sutter, Jr., Metz, Cook, Hanna & Kelly, for appellant.
William J. Staley, with him James M. Arensberg, Everett K. Dilworth, and Tucker, Burke, Campbell & Arensberg, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer and Barbieri. Judge Manderino disqualified himself and did not participate in the decision. Opinion by Judge Barbieri.
This is an appeal by the Urban Redevelopment Authority of Pittsburgh (Condemnor) from an order of the lower court dismissing appellant's motion for a new trial. Acting under its power of eminent domain
pursuant to the Act of June 22, 1964 (Special Session) P.L. 84, 26 P.S. § 1-101 et seq. (Supp. 1970), Condemnor appropriated a six-story building owned by the Pittsburgh National Bank (Condemnee). The first floor and mezzanine of the building contained the Condemnee's North Side Branch. The upper five floors were rented offices.
Condemnor filed a Declaration of Taking on May 6, 1966 and a Petition for Appointment of Viewers on June 6, 1966. The report of the Board of Viewers was filed on June 19, 1968, awarding Condemnee $600,000. Condemnee appealed on July 3, 1968. A trial then held before a judge of the Court of Common Pleas of Allegheny County and a jury resulted in a verdict in favor of Condemnee for $780,000. A motion by Condemnor for a new trial, presented and argued before a court en banc, was dismissed on February 6, 1970. This appeal followed.
The first of the appellant-Condemnor's contentions is that the verdict of the jury was excessive and against the weight of the credible evidence. Condemnor advances two arguments in support of this contention: (1) Condemnor's expert witness was more objective and better informed than the Condemnee's expert witnesses; (2) the jury verdict was disproportionate to the award of the Board of Viewers. Neither reason is persuasive. As to the first, the jury had a full opportunity to assess the persuasiveness of the witnesses and apparently found the opposing testimony almost equally convincing. The verdict was 31.6% more than the Condemnor's expert's appraisal and 28.7% less than the average of the Condemnee's experts' appraisals. The jury verdict does not "shock one's sense of justice" as it must for this Court to award a new trial on the ground that the verdict is against the weight of the evidence. See, Burrell v. Philadelphia Electric Co., 438 Pa. 286, 289,
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A.2d 516, 518 (1970). As to the second reason, the Supreme Court has recently said: "While the award of the Board of Viewers is an important circumstance to be considered when a new trial is requested either for inadequacy or excessiveness of the jury's verdict, it is not controlling. Dague v. Commonwealth of Pennsylvania, 418 Pa. 340, 211 A.2d 527 (1965)". Boring v. Metropolitan Edison Company, 435 Pa. 513, 524, 257 A.2d 565 (1969). In Boring, the Court approved a jury verdict which was almost five times the award of the Board of Viewers. In our case, the verdict was about 32% greater than the award. The 32% disparity thus could not be controlling and we find no other important circumstances in the record indicating that the verdict was either excessive or against the weight of the credible evidence. See also Morrissey v. Commonwealth, Department of Highways, 440 Pa. 71, A.2d (1970).
The second of the Condemnor's contentions is that one of the trial judge's points in his charge was confusing because it used the Assembled Economic Unit Doctrine as articulated in Singer v. Oil City Redevelopment Authority, 437 Pa. 55, 261 A.2d 594 (1970), without explicitly saying so, and because the charge was contrary to a stipulation of the parties. The charge in question reads: "In your determination of the just compensation to the Plaintiff for the loss of its property as a whole and in your determination of the fair market value of it at the time of its condemnation, you must consider the machinery, equipment and fixtures testified to as actually being in place on the first floor of the building involved at the time of the condemnation as a part of the ...