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CHARLES KASYCH v. COMMONWEALTH PENNSYLVANIA (01/17/74)

decided: January 17, 1974.

CHARLES KASYCH, JR. AND CHARLES KASYCH, SR., APPELLANTS,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Lehigh County in case of Charles Kasych, Jr. and Charles Kaysch, Sr. v. Commonwealth of Pennsylvania, Department of Transportation, No. 483 April Term, 1971.

COUNSEL

Helen Kasych, Trustee, with her Charles Kasych, Jr., Trustee, for appellants.

Jerry Richwine, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for appellee.

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

Author: Blatt

[ 11 Pa. Commw. Page 622]

Charles Kasych, Jr. and Charles Kasych, Sr. (condemnees) were the owners of 172.651 acres in Whitehall Township, Lehigh County, when, on July 28, 1969,

[ 11 Pa. Commw. Page 623]

    the Pennsylvania Department of Transportation (Department) condemned 1.849 acres of their tract for highway purposes. The property taken consisted of various strips along the frontage of the tract, 1427 feet in total length and varying from 47 to 75 feet in depth. Prior to condemnation, 2000 feet of frontage to a depth of 200 feet was zoned C-2 Commercial, 950 feet of frontage to a depth of 170 feet was also zoned C-2 Commercial, and the remainder was zoned agricultural.

A Board of Viewers was appointed, which awarded damages to the condemnees in the amount of $25,000.00. The condemnees then appealed to the Court of Common Pleas of Lehigh County which, following a jury trial, awarded them $15,000.00 in damages. Their motion for a new trial was denied, and an appeal was then brought to this Court.

"[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 manifest abuse of discretion or a clear error of law." Arndt v. Central Cambria School District, 7 Pa. Commonwealth Ct. 150, 153, 298 A.2d 682, 684 (1972). The condemnees have here presented a number of reasons as to why the lower court allegedly abused its discretion or committed errors of law in refusing to grant a new trial. Upon a close review of these arguments, however, we cannot agree with their validity and we must, therefore, affirm the lower court.

The condemnees' initial contention is that the verdict of the jury was inadequate and manifestly against the weight of credible evidence. In determining whether or not a verdict is against the weight of the evidence, certain principles are applicable: "(a) a jury may believe all or part of or none of the testimony of

[ 11 Pa. Commw. Page 624]

    any witness . . . (b) a jury in a condemnation case may not disregard evidence as to property values and substitute its own ideas . . . (c) in a condemnation case a jury may disregard the opinion of the property owner or his expert . . . or the opinion of an expert for the condemnor . . . (d) the weight of evidence dependent on oral testimony is always for the jury, not the ...


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