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COMMONWEALTH PENNSYLVANIA v. ANDREW BELLAS AND MARVEL M. BELLAS (06/27/74)

decided: June 27, 1974.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT,
v.
ANDREW BELLAS AND MARVEL M. BELLAS, APPELLEES



Appeal from the Order of the Court of Common Pleas of Mercer County in case of Andrew Bellas and Marvel M. Bellas v. Pennsylvania Department of Transportation, No. 55 December Term, 1970.

COUNSEL

David Ward Murphy, Special Assistant Attorney General, with him Richard J. Nassau, Special Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for appellant.

Bernard Goldstone, with him Routman, Moore, Goldstone & Valentino, for appellees.

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

Author: Mencer

[ 14 Pa. Commw. Page 294]

Andrew and Marvel Bellas were the owners of a tract of land in Mercer County upon which was located a

[ 14 Pa. Commw. Page 295]

    gasoline station which was under lease to the American Oil Company (American). On September 24, 1970, the entire tract was condemned by the Department of Transportation of the Commonwealth of Pennsylvania (Commonwealth).

A board of view awarded total damages of $28,000. Both parties appealed this award to the Court of Common Pleas of Mercer County where a jury awarded a verdict of $47,000. The Commonwealth filed a motion for a new trial. The motion was denied by the lower court and judgment was entered on the verdict. The Commonwealth then brought this appeal.

We first note our limited scope of review in this type of case, stated most recently in Cohen v. Redevelopment Authority of the City of Philadelphia, 12 Pa. Commonwealth Ct. 125, 127, 315 A.2d 372, 373 (1974): "The grant or refusal to grant a new trial is within the discretion of the lower court and will not be reversed on appeal '". . . absent a clear abuse of discretion or an error of law which controlled the outcome of the case."' Mishkin v. Lancaster Redevelopment Authority, 6 Pa. Commonwealth Ct. 97, 100, 293 A.2d 135, 136 (1972). This discretion, however, is not absolute and where '". . . the verdict is against the clear weight of the evidence or (that) the judicial process has effected a serious injustice, he [the trial court] is under a duty to grant a new trial."' Lewis v. Urban Redevelopment Authority of Pittsburgh, 5 Pa. Commonwealth Ct. 176, 179, 289 A.2d 774, 776 (1972)."

The Commonwealth argues as the only issue in its appeal that we should reverse the lower court and grant a new trial because the lower court erred by refusing to permit evidence of an option to purchase the condemned property for a specific price. A discussion of the facts surrounding this option is contained in the following excerpt from the lower court's opinion: "The testimony at the time of the trial indicated that

[ 14 Pa. Commw. Page 296]

    on April 23, 1955, Robert M. Bailey et ux., who were the prior owners of the property involved, entered into a lease with the American Oil Company leasing this property for a period of ten years with the option being given to the lessee to purchase the property at any time during the term of the lease ...


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