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RUSSELL J. KLICK AND GLADYS P. KLICK v. COMMONWEALTH PENNSYLVANIA (08/04/75)

decided: August 4, 1975.

RUSSELL J. KLICK AND GLADYS P. KLICK, HIS WIFE,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION. COMMONWEALTH OF PENNSYLVANIA, APPELLANT



Appeal from the Order of the Court of Common Pleas of Dauphin County in case of Russell J. Klick and Gladys P. Klick, his wife, v. Commonwealth of Pennsylvania, Department of Transportation, No. 20 September Term, 1971.

COUNSEL

William D. Miller, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellant.

H. Joseph Hepford, with him Hepford, Zimmerman & Swartz, for appellees.

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

Author: Crumlish

[ 20 Pa. Commw. Page 629]

This is an eminent domain case commenced by the filing of a petition for appointment of viewers on September

[ 20 Pa. Commw. Page 63013]

, 1971, by Russell J. Klick and Gladys P. Klick, his wife (Condemnees), Appellees herein, naming the Commonwealth of Pennsylvania (Commonwealth) as condemnor. The Court of Common Pleas of Dauphin County appointed viewers and following a site view of the premises and hearing, the viewers' report was filed awarding Russell J. Klick $95,075.00 for a tract commonly referred to as the "Hammaker tract," and $12,000.00 to Russell and Gladys Klick for lands commonly referred to as the "Klick tract."

Appeals followed the award in which Condemnees appealed the "Klick tract" determination ($12,000.00) while the Commonwealth appealed the "Hammaker tract" award ($95,075.00). Following trial, a jury verdict was returned in the amounts of $100,000.00 for the Klick tract and $120,000.00 for the Hammaker tract. Motion for new trial by the Commonwealth was denied below, hence this appeal.

It is well settled that we will not disturb a lower court's determination of a motion for new trial absent a manifest abuse of discretion, or a clear error of law which affected the outcome of the case. First Christian Church of Turtle Creek v. Redevelopment Authority of Allegheny County, 15 Pa. Commonwealth Ct. 9, 324 A.2d 821 (1974); Department of Transportation v. Bellas, 14 Pa. Commonwealth Ct. 293, 321 A.2d 418 (1974); Department of Transportation v. Lutz, 14 Pa. Commonwealth Ct. 448, 322 A.2d 800 (1974). This being so, we turn to the eight allegations of error set forth by the Commonwealth.

1. Did the trial court err in refusing to allow testimony of the selling price of the condemned property?

2. Did the court judge err in allowing into evidence as a comparable sale, a sale to a condemning authority?

3. Did the trial court err in allowing the condemnees' appraisers to give their valuation opinions before a sufficient foundation had been laid and in improperly ruling on comparable sales?

[ 20 Pa. Commw. Page 6314]

. Did the trial court err in its rulings on cross-examination?

5. Was the verdict on the Klick tract excessive?

6. Did the trial court err in refusing to grant a mistrial or to strike the valuation testimony of the owner?

7. Did the trial court err in refusing to allow a negative inference from a failure to call appraisers who had appraised the property for condemnation purposes?

8. Did the trial court err in allowing testimony by an appraiser where there was a failure to comply with the notification ...


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