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COMMONWEALTH PENNSYLVANIA v. W. D. UPHOLZER AND KATHLEEN E. UPHOLZER (03/24/75)

decided: March 24, 1975.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
W. D. UPHOLZER AND KATHLEEN E. UPHOLZER, HIS WIFE, APPELLEES



Appeal from the Order of the Court of Common Pleas of Westmoreland County in case of W. D. Upholzer and Kathleen E. Upholzer, his wife, v. Commonwealth of Pennsylvania, No. 835 January Term, 1969.

COUNSEL

John W. Pollins, III, with him Hammer and Pollins, Robert Lesko, Assistant Attorney General and Israel Packel, Attorney General, for appellant.

John N. Scales, with him Scales and Shaw, P. Louis DeRose, III, and Reginald L. Pawlowski, for appellees.

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

Author: Mencer

[ 18 Pa. Commw. Page 104]

On March 5, 1969, the Commonwealth of Pennsylvania (Commonwealth) filed a declaration of taking to effect a condemnation of 319.21 acres in Fairfield Township, Westmoreland County. This acreage was owned by W. D. Upholzer and Kathleen E. Upholzer (landowners). Subsequently, the Commonwealth became aware that it owned a portion of the 319.21 acres and, after some dispute, it was stipulated by counsel that the acreage involved in this condemnation was 276.26 acres. On the petition of the Commonwealth, a board of viewers was appointed, and it awarded damages of $60,000 to the landowners.

The landowners appealed this award to the Court of Common Pleas of Westmoreland County, and a non-jury trial was conducted before President Judge David H. Weiss, who viewed the property and found a verdict in favor of the landowners in the amount of $110,504.*fn1 The

[ 18 Pa. Commw. Page 105]

Commonwealth filed exceptions to the verdict which were dismissed by the court en banc on March 21, 1973. Judgment was entered on the verdict and the Commonwealth filed its appeal to this Court.

On August 29, 1973, we made a limited remand to the lower court for the purposes of resolution of the questions pertaining to delay and detention damages. Further hearings were held on September 21, 1973 and February 15, 1974, followed by orders of May 3, 1974 awarding special damages to the landowners for moving expenses, replacement housing expenses, and reimbursement of fees, in the amount of $1,489.50, and awarding delay compensation on $86,904 at 6 percent per annum from March 3, 1969*fn2 to October 13, 1972 and on $50,504 from October 13, 1972 until such time as the award is paid in full. The correctness of these orders is also before us on this appeal.

The Commonwealth advances seventeen arguments in support of its overall contention that the lower court's verdict and orders should be set aside and a new trial granted. Although we have carefully considered each argument made by the Commonwealth, we conclude that only those directed toward the award of delay compensation have merit. Therefore, we will discuss briefly only those arguments of some consequence.

The Commonwealth asserts that the expert valuation witnesses who testified on behalf of the landowners incorrectly based their opinions of value on a speculative future use of the condemned property. The market value of condemned property need not be measured in terms of the existing use of that land. However, recovery based upon a nonexisting use may not be based upon remote chances ...


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