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COMMONWEALTH PENNSYLVANIA v. PRESCOL (11/26/75)

decided: November 26, 1975.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION
v.
PRESCOL, INC., APPELLANT



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Commonwealth of Pennsylvania, Department of Transportation v. Prescol, Inc., No. 71-142.

COUNSEL

George W. Tracy, with him Tracy & McNamee, for appellant.

Martin Burman, Special Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellee.

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

Author: Crumlish

[ 22 Pa. Commw. Page 98]

The paramount question presented in this eminent domain appeal undertaken by Prescol, Inc., the condemnee herein, from an order of the Court of Common Pleas of Montgomery County which affirmed a jury of view award of $2,000.00 for property taken, is whether the trial court

[ 22 Pa. Commw. Page 99]

    erred in failing to disqualify the Commonwealth's expert witness' testimony concerning the highest and best use of the condemned property. That evidence ascribed the highest and best use of the property to be commercial rather than residential as suggested by the Appellant-condemnee. We hold that no such error occurred in light of our decision in Patterson v. County of Allegheny, 15 Pa. Commonwealth Ct. 228, 325 A.2d 484 (1974).

On January 6, 1971, the Department of Transportation condemned a portion of Appellant's tract situate in Towamencin Township. It lies on the southwest corner of the intersection of two heavily traveled secondary roads, viz., Allentown and Forty-Fort Roads. Crucial to this appeal is the old, three story, brick residential (and so zoned) structure which was bisected by the taking.

A jury of view awarded $4,000.00 to the condemnee as just compensation for the taking and it appealed to the lower court where a jury fixed damages at $2,000.00. Condemnee's motion for a new trial was refused. This appeal followed.

Condemnee's principle contention on appeal, as below in its motion for new trial, is that the trial court erred in permitting the Commonwealth's valuation expert to testify to a highest and best use of the condemned property lower than the present actual use, and which was based on speculative events in futuro. We disagree. A condemnor's expert may testify to a highest and best use which is less than that advanced by the condemnee. We have previously specifically approved that proposition in Patterson v. County of Allegheny, supra, 15 Pa. Commonwealth Ct. at 233-34, 325 A.2d at 487,*fn1 where the precise situation of the battle of the experts as to highest and best use arose and we there stated:

[ 22 Pa. Commw. Page 100]

"Condemnee's principal contention on appeal is that the trial court erred in refusing to adopt the opinion of its experts, alleged to be unrebutted, of the highest and best use of the property as a motelrestaurant-service station complex. A general contractor testified on behalf of condemnee that the property, with imaginative site preparation, was physically adaptable to such a use; and this testimony was neatly complemented by a real estate expert's opinion supported by extensive market studies that there was a public demand for such a use in the relevant market at the time of the condemnation. The trial court admitted this evidence as within the guidelines of Pa. Gas & Water Co. v. Pa. Turnpike Comm., 428 Pa. 74, 236 A.2d 112 (1967), but, as the fact finder, chose to believe the testimony of condemnor's experts who were of the opinion that the highest and best use of the property was residential with the possibility of future commercial development as a garage, small warehouse, research facility, or other related use of the level front acres and which depended upon easy accessibility from Moon-Clinton Road and the Beaver Valley Expressway. Suffice it to say that the testimony of condemnor's experts was competent and rebutted condemnee's theory of highest and best use, and it is within the province of the trial judge, acting as a jury, to resolve conflicts in this testimony and to weigh the ...


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