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JOSEPH C. PATTERSON AND CAROLINE S. PATTERSON v. COUNTY ALLEGHENY (09/24/74)

decided: September 24, 1974.

JOSEPH C. PATTERSON AND CAROLINE S. PATTERSON, APPELLANTS,
v.
COUNTY OF ALLEGHENY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Joseph C. Patterson and Caroline S. Patterson, his wife, v. County of Allegheny, No. 2494 April Term, 1970.

COUNSEL

Alan L. Ackerman, with him Michael R. Stabile, Jr., Lloyd Patross and Berkman, Ruslander, Pohl, Lieber & Engel, for appellants.

Samuel P. Kamin, Assistant County Solicitor, with him Francis A. Barry, County Solicitor, for appellee.

Judges Crumlish, Jr., Wilkinson, Jr., and Blatt, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 15 Pa. Commw. Page 230]

On March 13, 1970, the County of Allegheny (condemnor) filed a declaration of taking, condemning in its entirety the property of Joseph C. Patterson and Caroline S. Patterson (hereinafter collectively referred to as "condemnee"), consisting of 14.6 acres and located in Findlay Township, Allegheny County, for the expansion of the Greater Pittsburgh Airport. The property was of an oblong rectangular shape, with a 432 foot frontage on Moon-Clinton Road, and abutted in part but did not have direct access to the Beaver Valley Expressway to the rear. The first four-way interchange west of the Airport was 100 feet from the property, travelling along Moon-Clinton Road. Topographically, the property was noted by a "dip" or depression 125 feet in depth running through the property, with level plateaus to the front and rear. At the time of the taking, the land was utilized by condemnee as a residence, with a single-family home the only structure thereon,

[ 15 Pa. Commw. Page 231]

    serviced by all utilities but public sewer.*fn1 Zoning was then S-1 (Special).

Condemnee delivered possession of the property to condemnor on May 20, 1970, and was thereafter paid estimated just compensation of $51,800.00 pursuant to Section 407 of the Eminent Domain Code, Act of June 22, 1964, Special Session, P.L. 84, as amended, 26 P.S. § 1-407, and incidental moving expenses. A Board of Viewers returned a verdict of $65,700.00 in favor of condemnee on June 17, 1971. Condemnee appealed this award to the Court of Common Pleas of Allegheny County which -- after three mistrials, Judge Doyle decided the case on a non-jury basis -- returned a verdict of $73,065.00 less the $51,800.00 paid on account, with detention damages from May 30, 1970. From the order of the court en banc, dated April 25, 1973, dismissing condemnee's exceptions and directing the entry of a judgment on the trial court's findings, condemnee has appealed to this Court for new trial.

Our scope of review in appeals of this nature is limited to a determination of whether or not the trial court has committed a manifest abuse of discretion or error of law in granting or denying a new trial, and whether or not the verdict is against the clear weight of the evidence, or the judicial process has otherwise worked a serious injustice upon the appealing party. Cohen v. Redevelopment Authority of Philadelphia, 12 Pa. Commonwealth Ct. 125, 315 A.2d 372 (1974); Redevelopment Authority of Philadelphia v. United Novelty & Premium Company, Inc., 11 Pa. Commonwealth Ct. 216, 314 A.2d 553 (1973).

Initially, we must briefly dispose of condemnor's motion to quash the appeal as not perfected pursuant to the requirements of Section 2 of the Act of April 22,

[ 15 Pa. Commw. Page 2321874]

, P.L. 109, as amended, 12 P.S. § 689,*fn2 in that condemnee filed exceptions to the trial court's adjudication without first requesting the court to enter findings of fact and conclusions of law from which the same exceptions could be filed. This circuitous and time-consuming procedure has been eliminated by Pa. R.C.P. No. 1038 which suspends in part Section 2 of the Act of 1874,*fn3 and provides for exceptions to be filed within twenty (20) days of a decision by a judge sitting without a jury in all actions at law. See Commentary, Rule 1038, Goodrich-Amram Civil Practice (1973 Supplement), p. 432, 433. Appellee's reliance upon Singer v. Oil City Redevelopment Authority, 437 Pa. 55, 261 A.2d 594 (1970), is misplaced in that (1) the appeal there was taken prior to the effective date of Rule 1038,*fn4 and (2) the Appellant in Singer never filed exceptions as to the point of law which the ...


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