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HAZEL GODDARD v. COMMONWEALTH PENNSYLVANIA (06/08/76)

decided: June 8, 1976.

HAZEL GODDARD
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT



Appeal from the Order of the Court of Common Pleas of Lawrence County in case of Hazel Goddard v. Commonwealth of Pennsylvania, Department of Transportation, No. 158-B of 1971.

COUNSEL

Jeffrey L. Giltenboth, Special Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellant.

Richard J. Audino, with him Rea and Audino, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by Judge Rogers.

Author: Rogers

[ 25 Pa. Commw. Page 113]

Section 702 of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-702, provides that "[t]he condemnor shall, at the hearing before the viewers, present expert testimony

[ 25 Pa. Commw. Page 114]

    of the amount of damages suffered by the condemnee."

The instant appellant, the Commonwealth, by its Department of Transportation (PennDOT), took real estate of the appellee, Hazel Goddard. A Board of View was appointed and conducted a hearing at which the only person who appeared for PennDOT was an employee with the title Real Estate Specialist but who was not qualified to present expert valuation testimony. The Board of View permitted him to read the report of PennDOT's missing valuation expert. PennDOT's brief in this appeal states that this reading was with the consent of counsel for the condemnee but the condemnee says that it was done over his counsel's vigorous objection.

PennDOT appealed the Board of View's report to the Court of Common Pleas of Lawrence County, demanding a jury trial. In a fashion not clear in this record, PennDOT sought an order in the court below remanding the case to the Board of View so that it might properly present the testimony of the valuation expert. The lower court refused the application, ordered the trial to proceed and declared that at such trial PennDOT, by reason of its failure to present expert testimony to the Board of View, should be barred from presenting any valuation evidence at the trial de novo. PennDOT has appealed from the lower court's order. We will entertain the appeal despite reservations as to finality of the order below by viewing it as a decree confirming the viewer's report, which by Section 517 of the Eminent Domain Code, 26 P.S. § 1-517, is declared to be a final order. A further reason is that this simple eminent domain case is now almost five years old.

We believe that the lower court's order was erroneous. In Harris v. Pittsburgh Urban Redevelopment Authority, 212 Pa. Superior Ct. 232, 243 A.2d 167

[ 25 Pa. Commw. Page 115]

(1968), the trial court had refused offers of valuation testimony of a condemnor which, in violation of the command of Section 702, had failed to present expert testimony before the Board of View. The Superior Court reversed a judgment entered on the verdict, declaring, by President Judge Watkins, that the penalty for failure to comply with Section 702 imposed ...


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