Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Reverend Julian G. Zagorski, Bernice Dougherty and Cecilia E. Zagorski v. Commonwealth of Pennsylvania, No. 70-11018.
Ronald M. Chesin, Special Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellant.
Jules Pearlstine, with him George Willner, and Pearlstine, Salkin, Hardiman & Robinson, for appellees.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers. President Judge Bowman concurs in the result only. Judge Kramer did not participate in the decision in this case.
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The Commonwealth of Pennsylvania, acting by its Department of Transportation (PennDOT) has appealed
[ 24 Pa. Commw. Page 597]
from a judgment entered on a verdict in favor of landowners in an eminent domain case. We affirm.
Before the jury trial, PennDOT, pursuant to Section 703(2) of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-703(2), notified the landowners that an expert appraisal witness who had not testified before the Board of View would be called to testify at trial.
At the trial, PennDOT failed to call the witness named in the Section 703(2) notice, adducing the same expert opinion evidence presented to the Board of View. After verdict, denial of PennDOT's motion for new trial and judgment entered, PennDOT appealed. It says that two reversible errors appear in the record of the trial: (1) that the trial judge improperly permitted counsel for the appellees to argue to the jury that a negative inference could be drawn from PennDOT's failure to call the expert witness named in the Section 703(2) notice, and (2) that the trial judge improperly instructed the jury that such a negative inference could be drawn. PennDOT relies upon Lutsko v. Commonwealth of Pennsylvania, Department of Transportation, 13 Pa. Commonwealth Ct. 150, 318 A.2d 361 (1974), where we held that the failure to call a noticed witness should not be the subject of a negative inference.
The initial question, however, is whether the issues raised by the appellant were properly preserved for review.
During trial the jury was excused while counsel for the appellees moved to introduce into evidence PennDOT's notice that it would call an heretofore unused expert. The trial judge refused to admit the notice into evidence but ruled that the appellees' counsel could argue to the jury that PennDOT had engaged a witness, whom it did not call, and that an adverse inference might be drawn ...