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TINICUM REAL ESTATE HOLDING CORPORATION v. COMMONWEALTH PENNSYLVANIA (07/14/78)

decided: July 14, 1978.

TINICUM REAL ESTATE HOLDING CORPORATION, APPELLEE,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT



No. 77 January Term 197, Appeal of Commonwealth of Pennsylvania, Department of Transportation, from the Order of the Commonwealth Court of Pennsylvania to No. 784 C.D. 1975, affirming the Order of the Court of Common Pleas of Delaware County at No. 6476 of 1968.

COUNSEL

Roger T. Shoop, George Luskus, Asst. Attys. Gen., for appellant.

Edward Kassab, Media, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Packel, J., did not participate in the decision of this case.

Author: Eagen

[ 480 Pa. Page 223]

OPINION

On May 20, 1968, the appellant, Commonwealth of Pennsylvania, Department of Highways, now known as Department of Transportation (PennDOT), filed a declaration of taking condemning, for highway purposes, 23.63 acres of a 276.85 acre tract in Delaware County held by the appellee, Tinicum Real Estate Holding Corporation (Tinicum). Tinicum filed a petition for the appointment of viewers, and after a board of view hearing, the report of viewers awarded Tinicum $1,144,000.00 as damages. This included $900,000.00 for general damages and $244,000.00 for severance damages. Both parties filed an appeal in the Court of Common Pleas. A jury awarded Tinicum $384,300.00 as damages for the

[ 480 Pa. Page 224]

    taking. The difference between the board of view award and the jury award was thus $759,700.00. Tinicum then filed a motion for a new trial, which the trial court granted. From this order, PennDOT appealed to the Commonwealth Court which affirmed the order granting Tinicum a new trial. Tinicum Real Estate Holding Corporation v. Commonwealth, 25 Pa. Commw. 47, 358 A.2d 116 (1976). PennDOT filed a petition for allowance of appeal from the order of the Commonwealth Court which was granted. For the following reasons, we reverse the order of the Commonwealth Court and order the verdict of the jury reinstated.

At trial, it was stipulated that the highest and best use of the land was commercial -- industrial. Tinicum then presented two expert witnesses. The first, Herbert E. MacCombie, Jr., a professional engineer, testified as to a detailed description of the property. Out of the total 276.85 acre tract originally held by Tinicum, 23.63 acres were taken, 19.01 acres were condemned for the right of way of Interstate 95, and 4.62 acres, for the slope of the highway. As a result of the taking, the remaining property of 253.22 acres was severed into two tracts of 40.42 acres and 212.80 acres, respectively. Mr. MacCombie offered no opinion as to the before-taking or after-taking fair market value of the property.

Tinicum's other expert witness was John D. Bloodwell, a real estate appraiser and consultant. Relying on what he considered to be seven comparable sales, he testified that the fair market value of the land, prior to the taking and unaffected thereby, was $6,311,000.00, and its fair market value, after the taking and as affected thereby, was $4,747,000.00. Thus, the resultant figure for damages done to Tinicum by the taking was $1,564,000.00.

PennDOT then presented three expert witnesses. The first two were professional engineers who testified as to their role in preparing the land for construction of the highway, one of whom stated that the 47 test soil borings made by his firm on the property in question indicated that

[ 480 Pa. Page 225]

    the first 19 feet of material in the area of the property where the highway was to be built was unsuitable for construction, and new fill material had to be put in its place. Neither offered any opinion as to the before-taking or after-taking fair market value of the property.

PennDOT's real estate appraisal expert witness was Richard DeGrouchy. Relying on what he considered to be eight comparable sales, he testified that the fair market value of the land, before the taking and as unaffected thereby, was $3,166,000.00 and that the fair market value, after the taking and as affected thereby was $2,957,000.00. Thus, the resultant damage to Tinicum was placed at $209,000.00 by PennDOT.

As related before, the jury awarded damages in the amount of $384,300.00. Concluding this was inadequate, the trial court awarded a new trial.

In the exercise of sound discretion a trial court may grant a new trial in an eminent domain case solely on the ground the jury's verdict was inadequate, providing specific and valid reasons are given to show the verdict is not truly reflective of the damages suffered. Mazur v. Commonwealth, 390 Pa. 148, 134 A.2d 669 (1957). And in an appeal from an order granting or refusing a new trial on the ground of inadequacy our scope of review is limited to a determination of whether the trial court was guilty of a manifest abuse of discretion or an error of law. Springer v. Allegheny County, 401 Pa. 557, 165 A.2d 383 (1960).

Here the trial court cited four specific factors for its conclusion that the jury's ...


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