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REDEVELOPMENT AUTHORITY CITY PHILADELPHIA v. HARRY A. COHEN (07/20/77)

decided: July 20, 1977.

REDEVELOPMENT AUTHORITY OF THE CITY OF PHILADELPHIA, APPELLANT
v.
HARRY A. COHEN, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Harry A. Cohen v. Redevelopment Authority of the City of Philadelphia, No. 198 September Term, 1964.

COUNSEL

Francis J. Moran, with him Peter A. Galante, for appellant.

Lewis Kates, with him Joseph R. Livesey, and Kates & Livesey, for appellee.

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

Author: Rogers

[ 31 Pa. Commw. Page 175]

The Redevelopment Authority of the City of Philadelphia has appealed a judgment entered against it on a jury verdict in the Court of Common Pleas of Philadelphia County. The judgment was in favor of Harry A. Cohen and represents compensation for his real estate appropriated and condemned by the Authority. We affirm the judgment.

The Authority took Cohen's property at 108 North 6th Street, Philadelphia, pursuant to the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. ยง 1-101 et seq. A Board of View was appointed and a hearing conducted. Appellee's valuation expert was one Harry L. Haeberle who testified that the fair market value of the property on the date of condemnation was $22,500. The Authority's expert, one Samuel Beck, testified to a value of $9,200. The Board of View awarded Cohen $13,600. He appealed the award to the Court of Common Pleas of Philadelphia County.

[ 31 Pa. Commw. Page 176]

At the trial which ensued the appellee's only valuation witness was himself. He gave as his opinion that the property's value was $29,000. He did not produce Mr. Haeberle and testified that he did not call Mr. Haeberle because he could not afford to pay him for testifying at the trial. The Redevelopment Authority called two experts; one Cox, whose value was $10,000 but whose testimony was stricken by the trial judge and one Beck, who thought the property was worth $9,200. The Authority also called Mr. Haeberle under circumstances and with the consequences hereinafter described. The jury's verdict in favor of Cohen was in the amount of $21,500. The Authority has appealed.

Our scope of review in this class of case was defined in Cohen v. Redevelopment Authority of the City of Philadelphia, 12 Pa. Commonwealth Ct. 125, 127, 315 A.2d 372, 373 (1974), as follows:

The grant or refusal to grant a new trial is within the discretion of the lower court and will not be reversed on appeal '". . . absent a clear abuse of discretion or an error of law which controlled the outcome of the case."' Mishkin v. Lancaster Redevelopment Authority, 6 Pa. Commonwealth Ct. 97, 100, 293 A.2d 135, 136 (1972). This discretion, however, is not absolute and where '". . . the verdict is against the clear weight of the evidence or (that) the judicial process has effected a serious injustice, he [the trial court] is under a duty to grant a new trial."' Lewis v. Urban Redevelopment Authority of Pittsburgh, 5 Pa. Commonwealth Ct. 176, 179, 289 A.2d 774, 776 (1972).

See also Faith United Presbyterian Church v. Redevelopment Authority, 7 Pa. Commonwealth Ct. 490, 298 A.2d 614 (1972); Felix et ux. v. Baldwin-Whitehall School District, 5 ...


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