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decided: December 19, 1972.


Appeal from the Order of the Court of Common Pleas of Cambria County in case of William Arndt and Blanche Fogel Arndt, husband and wife, v. Central Cambria School District, a quasi municipal corporation of the Commonwealth of Pennsylvania, No. 784 September Term 1970. Appeal transferred from the Superior Court of Pennsylvania to the Commonwealth Court of Pennsylvania, February 11, 1972.


T. Dean Lower, for appellants.

Lawrence L. Davis, for appellee.

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

Author: Kramer

[ 7 Pa. Commw. Page 151]

This is an eminent domain case. It involves an appeal from an order of the Court of Common Pleas of Cambria County, refusing to grant a new trial to the property owners, William Arndt and Blanche Fogel Arndt (condemnees), and directing the entry of judgment in favor of the condemnees on the jury verdict in the amount of $65,100 against the Central Cambria School District (condemnor).

In 1943 the condemnees purchased the farm property in question, consisting of approximately 127 acres of land, for the investment purpose of selling "it off in parcels as the need arose." Prior to 1968, condemnees had sold several parcels to third parties so that at the time pertinent to this case, they retained ownership to 117.79 acres. In or before the year 1968, the condemnor,

[ 7 Pa. Commw. Page 152]

    being in need of land for the construction of a new school facility, commenced negotiations with the condemnees for the purchase of the subject land. After negotiations, which included a clear disclosure by the condemnor of the possibility of condemnation if a sales agreement was not entered into, the parties hereto, on March 18, 1968, entered into an agreement to sell. The agreement was an option contract which provided for consideration in the amount of $60,000 for the condemnees' land, reserving, however, to the condemnees a parcel of land "approximately 14 acres located in line along the easterly side of said tract." The agreement also provided that a deed with a "marketable warranty" would be delivered within sixty days of the receipt by the condemnees of notice of the condemnor's intention to exercise its option under the agreement. It also provided for the payment of $1,000 for the exclusive option contained in the agreement to be paid by the condemnor to the condemnees and for the removal by condemnees of a dwelling house located on the property within sixty days after notice from the condemnor, and left in the condemnees the right to remove certain timber that might be designated by the condemnor. On December 20, 1968, the condemnor notified the condemnees of its intention to exercise its option. Thereafter, the condemnees, having been informed that they did not have a marketable title, instituted an action to perfect their title which was completed in June of 1969. The record is clear that the condemnees did not offer a deed in compliance with the provisions of the option agreement.

Thereafter, upon deciding that it needed the entire tract of land owned by the condemnees for school purposes, and without further notice to the condemnees, the condemnor filed its declaration of taking on October 6, 1969 for the entire tract of land. On February

[ 7 Pa. Commw. Page 15318]

, 1970, the Court of Common Pleas appointed a Board of Viewers, which Board held hearings, after which, on July 27, 1970, it filed its report awarding to the condemnees the sum of $65,000 as compensation for damages suffered by virtue of the condemnation. Condemnees filed an appeal to the court below which conducted a jury trial. On January 19, 1971, the jury found for the condemnees in the amount of $65,100. Condemnees then moved for a new trial, which motion, after argument, was refused as hereinbefore stated by the lower court's order of December 29, 1971. Hence this appeal.

Before passing upon the several issues raised by the condemnees we note that our scope of review has been set forth in two recent opinions, Felix v. Baldwin-Whitehall School District, 5 Pa. Commonwealth Ct. 183, 289 A.2d 788 (1972), and Lewis v. Urban Redevelopment Authority of Pittsburgh, 5 Pa. Commonwealth Ct. 176, 289 A.2d 774 (1972). In those cases we noted that a motion for a new trial is addressed to the discretion of the trial court based upon the circumstances of the particular case and the lower court's action in granting or refusing such a motion will not be reversed in the absence of a ...

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