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ELIZABETH LUTSKO AND JOHN LUTSKO v. COMMONWEALTH PENNSYLVANIA (04/11/74)

decided: April 11, 1974.

ELIZABETH LUTSKO AND JOHN LUTSKO, APPELLANTS,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Clarion County in case of Elizabeth Lutsko and John Lutsko v. Commonwealth of Pennsylvania, No. 107 May Term, 1969.

COUNSEL

H. Ray Pope, Jr., for appellants.

David A. Johnston, Jr., Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for appellees.

Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 13 Pa. Commw. Page 151]

This is an appeal filed by condemnees Elizabeth and John Lutsko (Lutsko) from an order of the Court of

[ 13 Pa. Commw. Page 152]

Common Pleas of Clarion County dated February 1, 1971, which denied their motion for a new trial in an eminent domain case.

On August 27, 1964, the then Department of Highways (Commonwealth) effected a condemnation of 10.51 acres of the Lutskos' 92.72 acre farm to construct a one-way or divided interchange to Interstate Route 80. An additional 2.45 acres were taken for a channel change on the Lutsko property. On the petition of Lutsko, a board of viewers was appointed. The viewers awarded damages of $1,570.00, plus $241.00 for an interest in an oil well which is not here in dispute.

Lutsko appealed this award to the Court of Common Pleas of Clarion County where a jury trial was conducted. Although Lutsko had notified the Commonwealth before trial that they intended to call a valuation expert, as required by Section 703(2) of the Eminent Domain Code of 1964,*fn1 only Elizabeth Lutsko testified at trial as to value. She estimated the fair market value of the property prior to condemnation to be $25,000.00 with an after-value of $8,000.00. The Commonwealth, whose position before the viewers as well as at trial was that the condemnation "specially benefited"*fn2 the Lutskos' remaining property by transforming it into a commercially attractive site, offered the opinion of two valuation experts. They appraised the property to have a before value of $4,000.00 and

[ 13 Pa. Commw. Page 153]

$5,500.00 and an after-value of $5,800.00 and $62,500.00, respectively, and thus found no damages. On September 20, 1970, the jury returned a verdict of $1,000.00 in damages to Lutsko's property, and $241.00 for their interest in the oil well, and the court below thereafter denied Lutsko's motion for a new trial.

On appeal to this Court, Lutsko presents four grounds in its contention for a reversal of the lower court's refusal to grant a new trial: (1) the court erred in permitting counsel for the Commonwealth to comment in his closing argument on Lutsko's failure to call their valuation expert, and the court compounded the prejudice by instructing the jury that it could draw a negative inference from their failure to produce the expert's valuation; (2) the court erred in allowing testimony by the Commonwealth witnesses as to an after-value based upon speculative future commercial uses; (3) the court erred in its charge to the jury concerning "special benefits"; and (4) the verdict was ...


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