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DAVID BOSNIAK AND ANN BOSNIAK v. REDEVELOPMENT AUTHORITY CITY PHILADELPHIA (07/16/75)

decided: July 16, 1975.

DAVID BOSNIAK AND ANN BOSNIAK, APPELLANTS,
v.
THE REDEVELOPMENT AUTHORITY OF THE CITY OF PHILADELPHIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of David Bosniak and Ann Bosniak, his wife, v. The Redevelopment Authority of the City of Philadelphia, No. 3891 September Term, 1970.

COUNSEL

Lewis Kates, with him Leonard B. Edelstein and Joseph R. Livesey, for appellants.

Nicholas J. Scafidi, with him Peter A. Galante, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by President Judge Bowman. Dissenting Opinion by Judge Kramer.

Author: Bowman

[ 20 Pa. Commw. Page 293]

Prior to September 30, 1970, David and Ann Bosniak (appellants) owned and partially occupied premises known and numbered as 2101-03 North 13th Street, Philadelphia, Pennsylvania. On that date, this property was condemned by the Redevelopment Authority of the City of Philadelphia (appellee). On April 20, 1972, a duly appointed Board of View (Board) awarded appellants $42,078 as damages for the taking. Thereafter, cross-appeals were filed with the Court of Common Pleas of Philadelphia County. Although appellants requested and were granted a jury trial, both sides stipulated that the issue of business dislocation damages would be resolved by the court.

[ 20 Pa. Commw. Page 294]

The jury returned a verdict of $29,250, which did not include any award for business dislocation damages agreed by the parties to be decided by the court. Appellants then motioned for a new trial. By opinion and order dated August 19, 1974, the court denied appellants' motion, found that appellants were not entitled to business dislocation damages, and entered judgment on the verdict. This appeal followed.

Appellants cite four bases for reversing the lower court's order refusing the grant of a new trial: (1) the court erred in permitting appellee to introduce into evidence the inventory prepared and filed during the course of settling the estate of appellant David Bosniak's mother; (2) the court erred in excluding evidence, offered by appellants, of insurance coverage on the condemned premises; (3) the court's instructions to the jury with respect to "imminence of condemnation" were misleading and erroneous; and (4) the verdict was against the clear weight of the evidence. Further, appellants argue that the court's nonallowance of business dislocation damages resulted from a misapplication of the appropriate law.

While appellants had been record owners of 2103 North 13th Street since 1955, fee simple title to 2101 North 13th Street was initially obtained by appellant David Bosniak as a specific devisee under his mother's will, in April of 1966. By deed dated June 13, 1966, David Bosniak conveyed 2101 North 13th Street to himself and appellant Ann Bosniak, as tenants by the entireties.

During the course of the trial, appellant David Bosniak testified on appellants' behalf. Although his testimony contained no opinions or allusions as to the value of the subject premises, appellee was permitted, over appellants' objections, to cross-examine David Bosniak by use of the inventory which had been prepared and filed by the witness, as executor of his mother's

[ 20 Pa. Commw. Page 295]

    estate. This inventory listed the "fair value" of 2101 North 13th Street as $6,500 at the time of ...


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