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FELIX v. BALDWIN-WHITEHALL SCHOOL DISTRICT (04/14/72)

decided: April 14, 1972.

FELIX, ET UX.
v.
BALDWIN-WHITEHALL SCHOOL DISTRICT



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Albert Felix and Mary Ann Felix, his wife, v. The Baldwin-Whitehall School District, No. 212, January Term, 1969.

COUNSEL

David R. Levin, for appellants.

Edward R. Lawrence, with him Lawrence, Plum & Lawrence, for appellees.

Judges Kramer, Mencer and Blatt, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 5 Pa. Commw. Page ]

Page 184condemned for school purposes by the Baldwin-Whitehall School District (Baldwin) by the filing of a declaration of taking on October 10, 1968. A duly appointed board of view made an award of damages for such taking in the amount of $23,700. Appellants appealed to the Court of Common Pleas of Allegheny County from this award and the matter was tried before a jury which rendered a verdict in favor of appellants in the amount of $15,000. Appellants' motion for a new trial was refused by order dated July 8, 1971 and they appealed to this Court from that order.

A motion for a new trial is addressed to the discretion of the trial court based on the circumstances of the particular case and the court's action in granting or refusing such a motion will not be reversed in the absence of a manifest abuse of discretion or a clear error of law. Beyrand v. Kelly, 434 Pa. 326, 253 A.2d 269 (1969); Nicholson v. Garris, 418 Pa. 146, 210 A.2d 164 (1965); Feldman v. Starin, 203 Pa. Superior Ct. 130, 199 A.2d 482 (1964). The trial court's discretion in this regard is not absolute but is subject to appellate review. Austin v. Ridge, 435 Pa. 1, 255 A.2d 123 (1969); Burrell v. Philadelphia Electric Company, 438 Pa. 286, 265 A.2d 516 (1970).

Appellants raise four questions on this appeal in support of their contention that the court below abused its discretion by refusing the motion for a new trial.

First: Where the legal measure of damages for the complete taking of land under the power of eminent domain is fair market value, does a verdict awarding a specified amount "for a fair and just settlement" comply with the law?

Here the verdict of the jury, in pertinent part, read as follows: "And now, to wit: February 17, 1971, we, the Jurors empanelled in the above entitled case, find the sum of $15,000 for a fair and just settlement for

[ 5 Pa. Commw. Page 1863]

.916 acres." Appellants advance the argument that the legal measure of damages under the Eminent Domain Code of 1964*fn1 was the fair market value as of the date of taking and the jury was so instructed but the verdict of the jury was a different measure of damages, namely, "a fair and just settlement."

We are unaware of any authority that requires the amount of the verdict to be expressed in terms of fair market value, although fair market value is what the jury must determine. We are in accord with the reasoning of the court below when, in its opinion in support of its order, it stated: "The verdict in the instant case appears to us to have obvious meaning; the jury awarded the plaintiffs the amount of $15,000.00 as compensation for the taking of the property in question. We are inclined to view the jury's phrase 'for a just and fair settlement for 3.916 acres' as an artless ...


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