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NELIS v. REDEVELOPMENT AUTHORITY ALLEGHENY COUNTY (02/28/72)

decided: February 28, 1972.

NELIS
v.
REDEVELOPMENT AUTHORITY OF ALLEGHENY COUNTY



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of In Re: Condemnation by Redevelopment Authority of Allegheny County of a Certain Parcel of Land in the Borough of East Pittsburgh, Now or Formerly of Charles F. Nelis, Widower, No. 3807, July Term, 1967.

COUNSEL

Harvey E. Robins, with him Brennan and Brennan, for appellant.

Sylvan Libson, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Judge Manderino did not participate in the decision. Opinion by President Judge Bowman. Concurring Opinion by Judge Rogers.

Author: Bowman

[ 4 Pa. Commw. Page 534]

Charles F. Nelis, appellant, owned a certain parcel of commercial property in the Borough of East Pittsburgh

[ 4 Pa. Commw. Page 535]

    on which was located a building containing a hotel, restaurant and bar. The building was totally destroyed by fire in March 1967. Prior to the fire, the property with its improvements had been included in a comprehensive urban redevelopment plan, possibly as early as 1951, but formal condemnation proceedings as to individual properties in the area were not commenced until late 1966. A declaration of taking by the Redevelopment Authority of Allegheny County (Authority) as to the Nelis property was filed on June 26, 1967, some three months after the fire.

After a Board of Viewers had awarded Nelis compensation for the value of the now-vacant land only, he appealed to the Court of Common Pleas of Allegheny County alleging that he was aggrieved by the failure of the viewers' award to include the value of the structure destroyed by fire prior to the filing of the declaration of taking.

At trial, Nelis offered to prove by his own testimony certain actions and activities on the part of the Authority with respect to his property prior to the formal condemnation date on June 26, 1967 which he contends would support a de facto condemnation at some prior unspecified date. He also offered to prove by witnesses a pre-fire valuation of his property interest. The lower court excluded such evidence ruling that the value on the date of the filing of the declaration was the only valuation that could properly be considered by the jury and that it was not within the province of the jury to determine the legality of the taking. Having so ruled, and there being no dispute as to the value of the land alone, a directed verdict was entered in favor of Nelis in the same amount as contained in the viewers' award. Nelis then filed a motion for new trial assigning the trial judge's rulings as error. The motion was denied and this appeal taken.

[ 4 Pa. Commw. Page 536]

The ultimate question before this Court concerns the correctness of the trial judge's ruling in limiting valuation evidence to the time of formal "taking."

We believe that the trial judge has interpreted Section 402(a) of the Eminent Domain Code, Act of June 22, 1964, P.L. 84, Art. IV, § 402(a), 26 P.S. § 1-402(a), too literally in excluding Nelis' evidence for the reason stated. He ruled that the date of filing a declaration of taking is the only date which may be considered in ...


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