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JOHN KOPEC AND CASPER KOPEC v. REDEVELOPMENT AUTHORITY CITY HAZLETON (12/13/76)

decided: December 13, 1976.

JOHN KOPEC AND CASPER KOPEC, APPELLANTS
v.
REDEVELOPMENT AUTHORITY OF THE CITY OF HAZLETON, APPELLEE



Appeal from the Order of the Court of Common Pleas of Luzerne County in case of Redevelopment Authority of the City of Hazleton, Condemnor v. John Kopec and Casper Kopec, Condemnees, No. 1760 January Term, 1969.

COUNSEL

Robert J. Gillespie, with him Bigelow, Gillespie, LaRocca and Cooper, for appellants.

Anthony P. Sidari, with him Thomas L. Kennedy, for appellee.

Judges Mencer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 27 Pa. Commw. Page 516]

Casper Kopec and the estate of John Kopec (condemnees) appealed from an order of the Court of Common Pleas of Luzerne County dismissing their motion for a new trial in an eminent domain case. The case began on January 31, 1969, when the Redevelopment Authority of the City of Hazleton (condemnor) filed a declaration of taking of condemnees' premises. The case proceeded to jury trial when the condemnor appealed from the report of the board of viewers awarding condemnees $54,000 for the fair market value of the premises and $10,000 as business dislocation expenses for a boarding house.*fn1

During the short trial in which the sole issue for the jury was the amount of compensation to be paid, Casper Kopec testified that his loss on condemnation was $90,000. On cross-examination, he testified that he had obtained his interest in the property in 1964 (less than five years before the condemnation) when he, as executor of his mother's estate, and his two brothers transferred title to himself and one brother in consideration of $2,500. Three expert witnesses also testified as to value. One, called by condemnees,

[ 27 Pa. Commw. Page 517]

    opined that at condemnation the Kopec property was worth $73,250. The other experts, called by condemnor, offered value opinions of $35,000 and $33,000, based on comparable sales. One of these experts, Philip Fitelson, testified that he had appraised the premises on May 4, 1973 and that, among several comparable sales, he had considered one made on May 16, 1973.

The jury's verdict of $40,000 for fair market value and $10,000 for business dislocation expenses prompted condemnees, on February 4, 1974, to move for a new trial. Condemnees assigned as their reasons that the verdict was against the weight of the evidence and contrary to law. They also requested leave to file additional reasons as soon as the transcribed testimony had been received from the stenographer. The lower court denied such leave and ordered argument on the motion on February 28, 1974. The dismissal of the motion on April 3, 1974 engendered this appeal.

Condemnees request this Court to grant a new trial and assign as error four actions of the lower court: (1) the denial of a continuance of the argument on the motion for a new trial until the testimony had been transcribed; (2) the admission of the testimony of Philip Fitelson which was allegedly false on its face; (3) the admission of testimony regarding the purchase price of Casper Kopec's property interest and the failure to instruct the jury that such was not evidence of fair value; and (4) the abuse of discretion in failing to grant a new trial where the jury verdict was substantially less than the viewers' award.

Initially, we note that the grant of a new trial is within the sound discretion of the trial judge, who is present at the offering ...


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