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COMMONWEALTH PENNSYLVANIA v. JOSEPHINE SAPONE (11/22/74)

decided: November 22, 1974.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT,
v.
JOSEPHINE SAPONE, APPELLEE



Appeal from the Order of the Court of Common Pleas of Northampton County in case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, of Right of Way for Legislative Route 1098, Section 2, Deed Book C-52, Page 9, Claim No. 4802573, No. 11 May Term, 1969.

COUNSEL

Lawrence R. Wiedner, Assistant Attorney General with him Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for appellant.

Raymond J. DeRaymond, with him George F. Coffin, Jr. and Coffin, DeRaymond, Shipman and Stitt, for appellee.

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

Author: Rogers

[ 16 Pa. Commw. Page 395]

The Commonwealth of Pennsylvania by the Department of Transportation has appealed from a judgment entered in Northampton County upon a jury verdict awarding damages to Josephine Sapone, a condemnee. The appellant contends that the trial judge erred in admitting into evidence the opinions of the condemnee's valuation experts that the highest and best reasonably available use of the condemned property before the condemnation was industrial because those opinions were, it asserts, based on sales of other properties not comparable to the one in suit.

We have carefully reviewed the trial record and have concluded that the following pertinent portions of the opinion of the court below accompanying its order dismissing the Commonwealth's motion for new trial correctly and adequately dispose of the issues raised in this appeal.

"The condemnee, Mrs. Josephine Sapone, owned a tract of land consisting of approximately 63 acres located entirely within the borough limits of Stockertown,

[ 16 Pa. Commw. Page 396]

Northampton County, Pennsylvania. On June 16, 1969, the Commonwealth condemned 25.987 acres of Mrs. Sapone's land for the purpose of constructing Route 33, a four-lane, limited-access highway. A board of viewers was subsequently appointed; after conducting two views and after hearing testimony, the viewers filed their report in which they awarded the condemnee compensation in the sum of $32,000. An appeal was taken by the condemnee from the viewers' award. The trial of the case resulted in a verdict in favor of the condemnee in the sum of $52,598.

"The Commonwealth's principal contention in support of its motion for a new trial is that the condemnee failed to meet the burden of establishing that, at the time of the taking, the highest and best use of the condemned land was for industrial purposes. On the date of the condemnation and for the previous 46 years, the property was being used for residential and agricultural purposes. Nevertheless, two expert witnesses for the condemnee testified that, notwithstanding such use, the highest and best use of the property was for industrial purposes.

"It is well settled in Pennsylvania that condemnation damages need not be based upon the use currently being made of the condemnee's property if, in fact, its highest and best use is shown to be for some other more valuable purpose. Pennsylvania Gas and Water Company vs. Pennsylvania Turnpike Commission, 428 Pa. 74, 77 [236 A.2d 112, 114] (1967). Recovery based upon a non-existing use, however, may not be based upon 'remote chances or future possibilities.' Stoner vs. Metropolitan Edison Company, 439 Pa. 333 [266 A.2d 759] (1970). 'To prove a highest and best use the condemnee must establish that the land in question is physically ...


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