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COMMONWEALTH PENNSYLVANIA v. LAWRENCE E. HEROLD AND JUNE HEROLD (01/17/75)

decided: January 17, 1975.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
LAWRENCE E. HEROLD AND JUNE HEROLD, HIS WIFE, APPELLEES



Appeal from the Order of the Court of Common Pleas of Butler County in case of Lawrence E. Herold and June Herold, his wife, v. Commonwealth of Pennsylvania, No. 74 June Term, 1973.

COUNSEL

Geoffrey Paul Wozman, Assistant Attorney General, with him Israel Packel, Attorney General, for appellant.

John N. Gazetos, for appellees.

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

Author: Mencer

[ 17 Pa. Commw. Page 149]

In this eminent domain case the Commonwealth of Pennsylvania (Commonwealth) appeals the denial by the Court of Common Pleas of Butler County of its motion for a new trial.

On March 23, 1973, the Commonwealth filed a declaration of taking by which it acquired the perpetual right, power, privilege, and easement to overflow, flood, and submerge occasionally 14.2 acres of land owned by Lawrence E. Herold and June Herold, his wife (condemnees). The condemnees did not file preliminary objections to the taking, and the Commonwealth then filed a petition for the appointment of viewers. After the property was viewed and a hearing had been held, a board of view awarded total damages of $4,970. Condemnees appealed this award to the lower court, and a jury awarded damages of $13,000. The Commonwealth then filed a motion for a new trial which was denied by the lower court, and judgment was entered on the verdict. The Commonwealth then brought this appeal.

Our scope of review in this type of case was stated in Cohen v. Redevelopment Authority of the City of Philadelphia, 12 Pa. Commonwealth Ct. 125, 127, 315 A.2d 372, 373 (1974), as follows: "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,

[ 17 Pa. Commw. Page 150]

    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 first argues that the jury's award is excessive and against the weight of the evidence. We do not agree.

In determining whether or not a verdict is against the weight of the evidence, certain principles are applicable: "(a) [A] jury may believe all or part of or none of the testimony of any witness . . .; (b) a jury in a condemnation case may not disregard evidence as to property values and substitute its own ideas . . .; (c) in a condemnation case a jury may disregard the opinion of the property owner or his expert . . . or the opinion of an expert for the condemnor . . .; (d) the weight of evidence dependent on oral testimony is always for the jury, not the court." (Citations and footnote omitted.) Morrissey v. Department of Highways, 424 Pa. 87, 92-93, 225 A.2d 895, 898 (1967).

Also, we have previously stated that a new trial should be granted for the reason that the verdict is against the weight of the evidence only when the verdict is so contrary to the evidence as to shock one's sense of justice. Faith United Presbyterian Church v. ...


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