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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA v. WWSW RADIO (03/14/78)

decided: March 14, 1978.

IN RE: CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, OF RIGHT-OF-WAY FOR LEGISLATIVE ROUTE 02302, SECTION 2 R/W LIMITED ACCESS HIGHWAYS IN ROSS AND MCCANDLESS TOWNSHIPS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT
v.
WWSW RADIO, INC.



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of W.W.S.W. Radio, Incorporated v. Commonwealth of Pennsylvania, Department of Transportation, No. 2172 July Term, 1972.

COUNSEL

Bartley R. Simeral, Special Assistant Attorney General, with him Robert W. Cunliffe, Chief Counsel, and Robert P. Kane, Attorney General, for appellant.

J. Tomlinson Fort, with him Anthony J. Basinski, and Reed, Smith, Shaw & McClay, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt and DiSalle. Opinion by Judge Rogers.

Author: Rogers

[ 34 Pa. Commw. Page 289]

The Commonwealth of Pennsylvania, Department of Transportation (PennDOT) has appealed from a final judgment entered against it in the Court of Common Pleas of Allegheny County.*fn1 The judgment was on a jury's verdict in an eminent domain case.

The Commonwealth, by PennDOT, condemned 2.61 acres of a 78.1 acre tract of land owned by the appellee, WWSW RADIO, Inc. (WWSW). The parcel condemned was a narrow strip along McKnight Road, a public highway, and was taken for the purpose of improving the traffic flow along the highway. A Board of View awarded WWSW $22,000. WWSW appealed to the Court of Common Pleas of Allegheny County. At the trial, PennDOT's valuation evidence suggested damages of $11,000 and WWSW's of about $232,100. The jury rendered a verdict for WWSW in the amount of $115,000. PennDOT filed a motion for a new trial which was denied. Judgment was entered and this appeal followed. We affirm the judgment.

The first question at issue in this case emanated from the topography of WWSW's land. Most of the 78 acre tract is extremely hilly. Only two areas are relatively level; one is a high plateau on which WWSW had eight radio transmission towers and the other is a valley containing about 20 acres, the mouth of which fronted for about 235 feet on McKnight Road. The condemnation took the entire frontage in the area of the valley. WWSW contended that the condemnation effectively destroyed the use of the valley for development by depriving the valley area of access to McKnight Road. WWSW contended that the

[ 34 Pa. Commw. Page 290]

    highest and best use of this area, destroyed by the condemnation of the frontage, was for commercial and residential development. PennDOT's position was that the valley area could not be developed commercially or residentially before the condemnation because the cost of providing access from McKnight Road to the valley area was exorbitant, making any use infeasible. It contended that the highest and best use of this area before condemnation was for the construction of more radio towers.

WWSW produced an engineering expert who testified in his opinion that before condemnation it was feasible from an engineering standpoint to develop a part of the valley area and that an adequate access road could then have been feasibly constructed.

PennDOT then produced an engineering expert in rebuttal. This witness had prepared detailed plans of an access road from McKnight Road to the valley area, as well as estimates of the cost of constructing this road. PennDOT wanted to introduce the plans for this road and an overlay showing amounts of cutting and filling which would be required to build this road. It also offered its witness's testimony regarding the costs of building this road. The trial judge, on WWSW's objection, ruled that evidence of this hypothetical road project and of the cost of carrying it out should not be admitted but that the witness could express an opinion, contrary to that of WWSW's witness, that development of the valley area was never feasible because of the costs to provide access. The Commonwealth says the trial judge erred in excluding this expert testimony and that it should have a new trial for this reason. We disagree.

Section 603 of the Eminent Domain Code*fn2 provides that in the determination of the fair market value of a property before ...


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