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SENOR ET AL. v. ROSTRAVER TOWNSHIP AIRPORT AUTHORITY (08/23/71)

decided: August 23, 1971.

SENOR ET AL.
v.
ROSTRAVER TOWNSHIP AIRPORT AUTHORITY



Appeal from the order of the Court of Common Pleas of Westmoreland County, Civil Action -- Law, No. 745 January Term, 1966, in case of In re: Condemnation of 125 Acres, More or Less, Situate Partly in Rostraver Township, Westmoreland County, and Partly in Elizabeth Township, Allegheny County, Pennsylvania, By the Rostraver Township Airport Authority for Airport Purposes.

COUNSEL

A. C. Scales, with him Henry E. Shaw, Scales, Shaw, Lyons & Ceraso, and Robert Palkovitz, Palkovitz & Palkovitz, for appellants.

Bernard S. Shire, with him Ezerski, Shire & Bergstein, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Wilkinson. Judge Manderino concurs in the result only. Dissenting Opinion by Judge Mencer. Judge Kramer joins in this dissent.

Author: Wilkinson

[ 3 Pa. Commw. Page 90]

This is a case involving the recovery of damages as a result of a taking by eminent domain. The Board of View awarded plaintiffs-appellants $140,000. Plaintiffs-appellants appealed to the Court of Common Pleas. Plaintiffs-appellants' two experts testified to the damages as being $425,000 and $400,000, respectively. Defendant-appellee's two experts testified to the damages as being $98,050 and $99,200, respectively. The judge and jury viewed the premises. The jury awarded plaintiffs-appellants $300,000. The court en banc, on motion, granted a new trial on the grounds that the verdict was excessive, unless plaintiffs-appellants remit

[ 3 Pa. Commw. Page 91]

$125,000, thereby reducing the amount received by the plaintiffs-appellants to $175,000. Plaintiffs-appellants, having refused to accept the remittitur, appeal on the grounds that to award a new trial when there was testimony to support the award was an abuse of discretion, amounting to the court substituting its judgment of value for that of the jury. We do not agree with the position of plaintiffs-appellants and must affirm the court below.

The plaintiffs-appellants expressly base their appeal on the sole point that inasmuch as there was testimony of damages being as high as $425,000, the court abused its judicial discretion in granting the new trial unless plaintiffs-appellants accept damages of $175,000. It would seem to be a complete answer to this argument to cite cases before the Supreme Court of Pennsylvania where that court has approved granting a new trial based on the verdict being excessive, unless a remittitur was accepted, even though there was expert testimony of damages in an amount higher than the verdict. Two such cases are Dague v. Commonwealth, Department of Highways, 418 Pa. 340, 211 A.2d 527 (1965) and Young v. Upper Yoder Township School District, 383 Pa. 320, 118 A.2d 440 (1955). In Dague, the expert testimony spread from $9,000 to $31,000. The Board of View had awarded $18,200. The jury returned a verdict of $31,000. The lower court ordered a new trial unless plaintiff accepted a remittitur of $12,800, i.e., a verdict of $18,200. In Young, the spread of expert testimony was from $6,000 to $45,000. The Board of View had awarded $13,500. The jury verdict was $33,750. The lower court granted a new trial unless the plaintiff accepted a remittitur of $8,750, i.e., a verdict of $25,000. These two cases alone give more than ample support to the lower court's decision in the case before us and are a complete answer to the sole argument presented by plaintiffs-appellants.

[ 3 Pa. Commw. Page 92]

In cases where the plaintiff refuses to accept a remittitur, especially when the amount is within the spread of the testimony as to damages, it is argued, as it is here, that the judge or judges are substituting their idea of the proper verdict for that of the jury. This argument loses sight of the basis for remittitur. The judges are not fixing the amount they would award if they were the finders of fact. They are fixing the highest amount any jury could properly award, giving due weight to all the evidence offered.

"By what standard should the judge gauge the amount by which the award is to be reduced by remittitur? It is usually said that he should suggest a reduction to the highest amount which he would allow to ...


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