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decided: April 18, 1974.


Appeal from the Order of the Court of Common Pleas of Centre County in case of In Re: Condemnation of Premises in State College Borough by the Borough of State College for Parking Purposes, No. 126 October Term, 1967.


Louis F. Floge, with him Schnader, Harrison, Segal & Lewis, for appellant.

Robert K. Kistler, with him Miller, Kistler, Campbell & Mitinger, for appellee.

Judges Crumlish, Jr., Kramer, Mencer, Rogers and Blatt. President Judge Bowman and Judge Wilkinson, Jr., did not participate. Opinion by Judge Kramer. Dissenting Opinion by Judge Mencer.

Author: Kramer

[ 13 Pa. Commw. Page 118]

This is an appeal filed by The Gentzel Corporation (Gentzel) from an order of the Court of Common Pleas of Centre County, dated June 4, 1973, granting the motion of the Borough of State College (Borough) for a new trial. It is a condemnation case filed pursuant to the Eminent Domain Code (Code), Act of June 22, 1964, Sp. Sess., P.L. 84, art. 1, § 101 et seq., 26 P.S. § 1-101 et seq., and the motion for new trial followed a jury trial and verdict for condemnee, Gentzel, in the amount of $597,687.41.

On September 22, 1967, the Borough filed its formal Declaration of Taking wherein it described by metes and bounds certain property owned by Gentzel which the Borough desired to condemn and take in fee simple for the public purpose of expanding downtown automobile parking facilities in the Borough. The property involved is located in the center of the downtown business district and contains 36,860 square feet. It is bounded on the east by Pugh Street, on the north by Calder Alley, on the west by Humes Alley and on the south by a property line with adjoining property. Gentzel's sole business was the ownership, management and operation of the condemned property together with other commercial and multi-tenanted buildings

[ 13 Pa. Commw. Page 119]

    across Calder Alley and across Pugh Street. At the time of the taking, the condemned property had been improved by buildings used for various purposes. Some of these buildings were used as apartments and others were used for commercial purposes. The largest building on the condemned property contained a heating plant in its basement which was used to heat not only the buildings on the condemned property, but also the buildings on the neighboring Gentzel properties.

Preliminary objections contesting the validity of the taking were filed but these were dismissed ultimately by the Supreme Court of Pennsylvania at 433 Pa. 612, 248 A.2d 766 (1969), in a per curiam opinion. A board of view was thereafter appointed by the lower court. The lower court directed the board of view to "consider not only the claims relating to the premises described in the declaration of taking" but to also consider "any offers of proof as to any other damages resulting therefrom if they should find such damages are compensible [sic] according to law." In a report dated September 29, 1971, the board found the just compensation for the taking of the Gentzel property to be $552,320.00. In addition, the board found damages for one of the tenants in the amount of $81,223.13, making a total of $633,543.13. The board also awarded Gentzel $3,365.00 for removal damages. In its report, the board noted that on June 12, 1969, the Borough had made a partial payment of $50,000.00 to the tenant and $375,000.00 to Gentzel. The Borough appealed to the court below from the award made by the board. Prior to the jury trial before the court below, the Borough, by stipulation and agreement, settled the case with the tenant via the payment of $25,000.00 in addition to the $50,000.00 previously paid. In the same stipulation, Gentzel agreed that the Borough would be credited a total of $75,000.00 against any award ultimately found in favor of Gentzel, and Gentzel and his

[ 13 Pa. Commw. Page 120]

    tenant agreed to share any detention damages. The jury trial then proceeded involving only the compensation due Gentzel for the property taken.

At the jury trial, Gentzel presented the testimony of its president who valued the property taken at $782,359.20 based primarily upon one comparable sale in the area. Gentzel also presented the testimony of two highly qualified expert witnesses. One testified to a valuation of $674,000 based primarily upon comparable sales. He attributed a value of $549,000 to the land and buildings and a value of $125,000 to the heating plant. Gentzel's other expert witness testified to a valuation of $647,800 based upon a land and building value of $522,800 and the same heating plant value. Both of these experts agreed that they relied upon a third expert witness, named Nicholas, who restricted his evaluation to the heating plant itself. Nicholas, who was also highly qualified, described the heating plant in great detail and broke down his $125,000 ...

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