Appeal from the Order of the Court of Common Pleas of Carbon County in case of Vincent F. Gilotti and Mary Louise Gilotti v. Pennsylvania Power & Light Company, No. 61 January Term, 1976.
Gennaro D. Caliendo, with him Vincent Butler, Bryan A. Snapp, Murray Mackson, and Mackson, Hauff & Turczyn, for appellant.
Roger N. Nanovic, with him Nonovic & McKinley, for appellees.
Judges Mencer, Blatt and Craig, sitting as a panel of three. Opinion by Judge Mencer.
[ 39 Pa. Commw. Page 236]
The Pennsylvania Power & Light Company (condemnor), under the authority of a certificate of public convenience issued by the Pennsylvania Public Utility Commission, exercised its right of condemnation and appropriated an easement consisting of 0.925 acre of land owned by Vincent F. Gilotti and Mary Louise Gilotti, husband and wife (condemnees) for the use as a right-of-way for the construction, operation, and maintenance of a new electric transmission line. The condemnor also appropriated the right, to the extent necessary, to remove trees, brush, buildings, or other things from this 0.925 acre of land and the right to cut down and/or trim any danger trees within 50 feet on either or both sides of the edge of the appropriated right-of-way.
A board of viewers was appointed, and it made an award of damages to the condemnees in the sum of $12,000. Condemnees appealed from this award to the Court of Common Pleas of Carbon County and, after trial, a jury returned a verdict for damages relative to the property condemned, in the amount of $68,000. Following denial of a motion for a new trial and entry of judgment on the verdict, the condemnor filed a timely appeal to this Court.
Our scope of review is limited in an appeal from a denial of a motion for a new trial. A motion for a new trial is addressed to the discretion of the trial court, based on the circumstances of the particular case, and the court's action in granting or refusing such a motion will not be reversed in the absence of a manifest abuse of discretion or a clear error of law. Gallo v. Redevelopment Authority of Sharon, 19 Pa. Commonwealth Ct. 71, 339 A.2d 165 (1975).
On appeal here, the condemnor asserts three reasons why the trial court should be reversed:
[ 39 Pa. Commw. Page 237]
First, the trial court erroneously held that, as a matter of law, it had no power to exercise its judicial discretion in considering the grant of a new trial because the jury's verdict was within the range of the testimony of record on the question of value.
We are satisfied that the condemnor misconceives the trial court's holding or position on this point. The trial court in its opinion in support of its order denying condemnor's motion for a new trial, after quoting the standard for the grant of a new trial enunciated in Austin v. Ridge, 435 Pa. 1, 255 A.2d 123 (1969), stated:
Thus the established doctrine in Pennsylvania does not authorize nor permit us to grant a new trial merely because it is our opinion the jury found damages in excess of the damages we would have rendered on the same evidence in a trial before us without a jury. To grant a new trial for such reason we must find either that the verdict is against the clear weight of the evidence or that the judicial process has effected a serious ...