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decided: June 7, 1974.


Appeal from the Order of the Court of Common Pleas of Crawford County in case of Meadville Cooperative Association v. Commonwealth of Pennsylvania, Department of Transportation, No. 71 May Term, 1971.


Jeffrey L. Giltenboth, Special Assistant Attorney General, with him Donald C. Fetzko, Special Assistant Attorney General, John M. Tighe, Special Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for appellant.

George J. Barco, with him F. C. Kiebort, Jr., and Barco and Barco, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson. Concurring Opinion by Judge Blatt.

Author: Wilkinson

[ 13 Pa. Commw. Page 453]

This eminent domain case is before us on appeal from the lower court's order dismissing the appellant-condemnor's rule to show cause why a new trial should not be awarded and refusing a new trial. The appellant-condemnor had condemned appellee's property for highway purposes. A board of view awarded damages of $93,700. The appellant-condemnor appealed to the Court of Common Pleas. A five-day jury trial ensued with a transcript of 450 pages. The jury awarded $93,500.

Appellant-condemnor filed a motion for a new trial alleging the "standard" five reasons, i.e., that the verdict was (1) excessive, (2) against the evidence, (3) against the weight of the evidence, (4) against the law, and (5) against the charge. The appellant-condemnor asked for and was granted leave to assign additional reasons for a new trial within 30 days after the transcript of the testimony and the charge of the court were filed. The transcript was filed and notice thereof served on appellant-condemnor on July 10, 1972. Contrary to the leave requested and granted, additional reasons for a new trial were not filed until October 24, 1972, 106 days later. As pointed out by the learned court below, this in itself would have been sufficient cause to dismiss the two additional reasons filed, one of which is the only reason being pressed here. That one

[ 13 Pa. Commw. Page 454]

    reason was stated in the late filing for a new trial as follows: "The Court erred in sustaining an objection by the Condemnee in excluding the sale price of a property which has (sic) already been judicially determined as comparable."

One of the appellant-condemnor's expert witness was testifying on direct examination that in fixing the value of the condemned property, he relied on the sale of a similar property some 35 miles from the condemned property, in another county. Photographs of the property in the adjoining county were offered. Appellee-condemnee objected to the admission of the photographs on the basis that comparability had not been established. After a few additional questions on comparability on direct examination, the court overruled the objection to the admissibility of the photographs, stating: "The ruling of the court is the objection is overruled. Due to the uniqueness of this type of business, we feel that this comparable is for the jury's consideration even though it's in another County."

Appellant-condemnor then asked the expert witness to state the consideration for the sale of the property in the adjoining county. Appellee-condemnee objected that such a question was improper on direct examination. The entire matter is quoted as follows: "Q. What was the consideration -- [Attorney for appellee-condemnee]: Wait a minute. We object to that, your Honor. That isn't proper testimony to be brought out on direct examination. The Court: Sustained." Without appellant-condemnor pressing the court that the question was proper, that the objection should not be sustained, or giving the court reasons therefor and, most importantly, without placing in the record, by way of an offer at side bar, what the witness would have testified if permitted to answer, appellant-condemnor casually moved on to another question.

[ 13 Pa. Commw. Page 455]

It seems that prior to the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, 26 P.S. ยง 1-101 et seq., it was improper on direct examination, to permit a witness to give the sale price of comparable property. Snitzer, Pennsylvania Eminent Domain, page 388 (1965). Such information could be admitted only by way of cross-examination. ...

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