Appeal from the Order of the Court of Common Pleas of Delaware County in case of Tinicum Real Estate Holding Corporation v. Commonwealth of Pennsylvania, Department of Transportation. No. 6476 of 1968.
George Luskus, Special Assistant Attorney General, with him Louis J. Presenza, Special Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellant.
Frank L. Tamulonis, Jr., with him Edward Kassab, and Kassab, Cherry & Archbold, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer. Judge Kramer did not participate in the decision in this case.
The Commonwealth of Pennsylvania has appealed from an order of the Court of Common Pleas of Delaware County granting a new trial in an eminent domain case. A motion for a new trial is addressed to the discretion of the trial court based on the circumstances of the particular case, and the court's action in granting or refusing such a motion will not be reversed in the absence of a manifest abuse of discretion or a clear error of law. Beyrand v. Kelly, 434 Pa. 326, 253 A.2d 269 (1969). The trial court's discretion in this regard is not absolute but is subject to appellate review. Burrell v. Philadelphia Electric Company, 438 Pa. 286, 265 A.2d 516 (1970).
We have carefully read and studied the record in this case. Although we might have decided otherwise, we cannot conclude that the trial court in this case manifestly abused its discretion by granting a new trial. Further, we do not perceive how we could better discuss and explain the justification for the trial court's ruling than to set forth the excellent opinion of President Judge Catania:
"In this action in eminent domain, the plaintiff condemnee has appealed from a jury award of condemnation damages in the sum of $384,300.00 alleging (1) the verdict was inadequate and (2) the verdict was against the weight of the evidence.
"The Tinicum Real Estate Holding Corporation is the owner of property situated in Tinicum Township, Delaware County, Pennsylvania, bordered on the East by Long Hook Creek, on the West by Darby Creek and occupying property on the North and South side of the Industrial Highway. Prior to May 20, 1968, the size of the area owned by plaintiff totaled 276.85 acres. On the above-mentioned date, the Commonwealth filed a declaration of taking condemning 19.01 acres for the right-of-way for the proposed Interstate 95 Highway, and 4.62 acres for the slope of said highway.
"The area actually taken by the Commonwealth reduced plaintiff's total acreage to 252.22 acres, in addition to severing the property by denying plaintiff access to 40.42 acres.
"A Board of View, duly appointed, awarded the owner $1,144,000.00 in damages, comprised of $244,000.00 as severance damage and $900,000.00 in general damages.
"From this award, an appeal was taken by both parties to the Court of Common Pleas of Delaware County and the above-mentioned jury award was the result. At the ...