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FAITH UNITED PRESBYTERIAN CHURCH v. REDEVELOPMENT AUTHORITY (12/21/72)

decided: December 21, 1972.

FAITH UNITED PRESBYTERIAN CHURCH
v.
REDEVELOPMENT AUTHORITY



Appeals from the Order of the Court of Common Pleas of Washington County, in case of Faith United Presbyterian Church (formerly Central Presbyterian Church) v. Redevelopment Authority of the County of Washington, No. 340 May Term, 1971.

COUNSEL

Frank A. Conte, for appellant.

Gaylord W. Greenlee, with him Greenlee, Richman, Derrico & Posa, for appellee.

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

Author: Blatt

[ 7 Pa. Commw. Page 492]

This is an appeal from a decision of the Court of Common Pleas of Washington County refusing a motion for a new trial. The action was begun on June 10, 1971 when a Declaration of Taking was filed by the Redevelopment Authority of Washington County (Authority) pursuant to § 402 of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-402, taking a two-story brick church building owned by the Faith United Presbyterian Church (Church). A Board of View was appointed, and it subsequently awarded the Church damages in the sum of $88,500.00. Both the Authority and the Church appealed this award to the lower court, which held a jury trial. The jury returned a verdict of $152,000.00 and the Authority filed a motion for a new trial, which was denied by the lower court en banc.

During the course of the trial, each side presented two witnesses to testify regarding valuation. John Grable (Grable), an officer of the Church, testified for the Church initially that the property had a value of $400,000.00. Upon objection, the court had this figure stricken, and Grable thereafter testified that by taking

[ 7 Pa. Commw. Page 493]

    depreciation into account he would come up with a value of $250,000.00. The Church also presented Julian Fine (Fine) as an expert witness, and he testified that the value of the property immediately prior to taking was $210,000.00. Fine based this figure on the reproduction cost less depreciation because, in his opinion, there were insufficient sales of churches in the neighborhood to justify the use of comparables. The Authority's expert witnesses, Herschel Fetherlin (Fetherlin) and Malcolm Morgan (Morgan) used the comparable market value approach to ascertaining value, and they found the fair market value of the property to be $52,000.00 and $51,000.00 respectively.

Our scope of review is limited, of course, in any appeal from a denial of a motion for a new trial. "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." Felix v. Baldwin-Whitehall School District, 5 Pa. Commonwealth Ct. 183, 185, 289 A.2d 788, 789 (1972). A heavy burden, therefore, rests upon the appellant in such an appeal as this, and, although the Authority has attempted to point out a number of errors allegedly committed by the court below, we must find that it has failed to carry its burden.

The Authority contends that it was improper for Grable to testify because he had not testified before the Board of View and because no notice of his appearance was given as required by § 703(2) of the Eminent Domain Code, 26 P.S. § 1-703(2).*fn1 It is also contended that the testimony he gave was incompetent.

[ 7 Pa. Commw. Page 494]

As to the propriety of Grable's testifying, it is true that there was a failure to comply with § 703(2), but such compliance by the owner of the property condemned is made unnecessary by § 704 of the Eminent Domain Code, 26 P.S. § 1-704, which states: "The condemnee or any officer of a corporate condemnee, without further qualification, may testify as to just compensation, without compliance with the provisions of section 703(2)." This section is merely a codification of the law as stated in cases such as Hencken v. Bethlehem Municipal Water Authority, 364 Pa. 408, 72 A.2d 264 (1950). ...


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