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CONDEMNATION A TRACT LAND BEING PART HATFIELD PARK v. HATFIELD TOWNSHIP (02/17/76)

decided: February 17, 1976.

IN RE: CONDEMNATION OF A TRACT OF LAND BEING PART OF HATFIELD PARK, PLATE NO. 3, SITUATE IN HATFIELD TOWNSHIP, MONTGOMERY COUNTY, PENNSYLVANIA, BY HATFIELD TOWNSHIP FOR PARK PURPOSES. ALFRED O. BREINIG, GRACE BUILDING CO., INC., SUBURBAN BUILDING MATERIALS CO., INC., CURTIS BUILDING CO., INC., BARBARA BREINIG, CAROL BREINIG AND CHARLES BREINIG, APPELLANTS
v.
HATFIELD TOWNSHIP, APPELLEE. GRACE BUILDING CO., INC., APPELLANT V. HATFIELD TOWNSHIP, APPELLEE. SUBURBAN BUILDING MATERIALS CO., INC., APPELLANT V. HATFIELD TOWNSHIP, APPELLEE. CURTIS BUILDING CO., INC., APPELLANT V. HATFIELD TOWNSHIP, APPELLEE. BARBARA BREINIG, APPELLANT V. HATFIELD TOWNSHIP, APPELLEE. CHARLES BREINIG, APPELLANT V. HATFIELD TOWNSHIP, APPELLEE. CAROL BREINIG, APPELLANT V. HATFIELD TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of In Re: Condemnation of a Tract of Land Being Part of Hatfield Park, Plate No. 3, Situate in Hatfield Township, Montgomery County, Pennsylvania, by Hatfield Township for Park Purposes, No. 65-9608.

COUNSEL

Alfred O. Breinig, Jr., for appellants.

George Willner, with him Pearlstine, Salkin, Hardiman & Robinson, for appellee.

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

Author: Kramer

[ 23 Pa. Commw. Page 396]

This is an appeal by the appellants named in the above captions from an order of the Court of Common Pleas of Montgomery County awarding damages to the appellants in the total amount of $12,050 for the taking of 58 lots by Hatfield Township for public park purposes. The appellants have raised 13 different issues alleging reversible error by the trial court. We conclude there was no reversible error, and, therefore, affirm.

On August 9, 1965, a tract of land consisting of 21.063 acres of unimproved, undeveloped land was condemned through the filing of a declaration of taking. The entire tract comprised some 327 lots, each approximately 20 feet wide by 110 feet long. The appellants owned 58 of the lots in the respective numbers set forth in the court's order. The entire tract is zoned R-75, single-family residential, which requires a minimum lot size of 11,250 square feet, a lot frontage of not less than 75 feet on a public street, and side yards of not less than 12 feet in width. None of the individual lots meet these requirements. The ordinance does make a provision for the granting of special exceptions to nonconforming lots which had been held in single and separate ownership since a time prior to the enactment of the zoning ordinance. All of the appellants are either members of the Breinig family or are corporations owned by members of that family. The 58 lots are located in scattered groups throughout the entire condemned tract. Some of the groupings are titled in one named appellant; others are titled in a mixture of named appellants. None of the groups of adjoining lots as individually titled in any one of the appellants meets the minimum area requirements of the zoning ordinance in an R-75 district.

The matter was consolidated for hearing, and a Board of View awarded a total of $2,815 for the various lots of the appellants, together with other awards which are not matters of our concern in this appeal. The appellants

[ 23 Pa. Commw. Page 397]

    appealed to the trial court, and after four days of hearing, the court, on January 9, 1974, issued an order awarding a total of $12,050 to the appellants for the taking of their 58 lots. Appellants filed exceptions which were argued before the court en banc and dismissed by an order dated December 6, 1974. Appellants then appealed to this Court, after which, on April 25, 1975, the trial court issued its opinion in support of its order.

In an appeal from a final order of a court of common pleas in an eminent domain case, our scope of review is to determine whether the trial court abused its discretion or committed an error of law.*fn1

The appellants charge that the trial court erred in not honoring their request for recusation by the trial judge. Their motion was based upon the fact that the trial judge at the time of the opening of the trial in this case received for his approval a settlement between the Township and another substantial landowner within the condemned tract. The appellants contend that such a settlement gave the trial judge information which worked to the prejudice of the appellants. The matter was raised at the beginning of the trial, and the trial judge refused the motion. Without more than the bare allegation of possible prejudice, we cannot hold that his refusal to disqualify himself was prejudicial per se. Judges often are called upon to settle cases with similar issues and facts. At times a judge must decide cases involving identical facts but different parties. Certainly in those counties where there is but one trial judge, this could be a common occurrence.

The appellants next argue that the trial judge committed error in not permitting the appellants to challenge and rebut the qualification of the Township's expert valuation witness through a showing that that witness, ...


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