Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

EMORY D. STINE AND VIOLET R. STINE v. COMMONWEALTH PENNSYLVANIA (10/01/76)

decided: October 1, 1976.

EMORY D. STINE AND VIOLET R. STINE
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT



Appeal from the Order of the Court of Common Pleas of Dauphin County in case of Emory D. and Violet R. Stine v. Commonwealth of Pennsylvania, Department of Transportation, No. 1221 June Term, 1966.

COUNSEL

William D. Miller, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General-Chief Counsel, and Robert P. Kane, Attorney General, for appellant.

Joseph A. Klein, for appellees.

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

Author: Wilkinson

[ 26 Pa. Commw. Page 294]

This action commenced with the filing of a petition for appointment of viewers on August 2, 1966, by the Department of Transportation (appellant) naming Emory D. and Violet R. Stine as condemnees. The death of Violet R. Stine leaves Emory as the sole appellee. The tract in question, previously used as a dairy farm, is located in Swatara Township in Dauphin County. Of its original 52.29 acres, 12.67 were taken for a right-of-way. Remaining are 4.38 acres west of the right-of-way and 35.24 acres to the east of the right-of-way. Condemnation was effected on May 20, 1964, by the filing of a highway plan.

The viewers, appointed by the Court of Common Pleas of Dauphin County, awarded $37,500.00 in damages in a report filed on April 26, 1974. The award was appealed by both parties. A jury trial was held and a judgment rendered on October 2, 1975. Damages were set at $80,000.00 plus $43,365.00 in detention damages. By stipulation the judgment was molded to $97,115.00. Appellant's motion for a new trial was denied on November 7, 1975, and judgment entered for the appellee on November 18, 1975. This appeal followed.

Numerous evidentiary questions are raised on this appeal. Most of them are improperly raised, however. In some cases no objection was made below or the objection was improper in form. Appellate courts will not consider objections when a party has not preserved his right to appeal. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974);

[ 26 Pa. Commw. Page 295]

Pa. R.A.P. 302(a).*fn1 In other cases the objection raised on appeal is different than what was made below. When objections are specifically stated, all other grounds for objections are waived. Commonwealth v. Raymond, 412 Pa. 194, 194 A.2d 150 (1963). Questions on appeal not properly raised below will not be considered by the Commonwealth Court of Pennsylvania. Coleman v. Stevenson, 20 Pa. Commonwealth Ct. 498, 343 A.2d 375 (1975). The Court will, therefore, only address those questions properly before it.

Several questions are raised concerning the Commonwealth's liability for detention damages. In this case liability must be decided on the basis of law prior to the Eminent Domain Code, Act of June 22, 1964, P.L. 84, as amended, 26 P.S. ยง 1-101 et seq. Under pre-code law a condemnee was prima facie entitled to damages for delay in payment of his compensation. Fidelity-Philadelphia Trust Co. v. Commonwealth, 352 Pa. 143, 145, 42 A.2d 585, 586 (1945).

"The right to damages for delay in payment in such cases may, of course, be lost if the cause for delay is the fault of the property owner. Such fault may be evidenced by an unconscionable or excessive claim of damages by the owner of the property or by his refusal, as otherwise indicated, to negotiate for the amicable settlement of the property damages."

During direct examination the condemnee testified as to his willingness to compromise the amount of damages. He also testified "I have asked them to leave my buildings and they could have the right-of-way free of charge." This testimony is attacked on appeal as irrelevant and prejudicial. Because the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.