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COMMONWEALTH PENNSYLVANIA v. EDITH NEMIROFF (05/08/79)

decided: May 8, 1979.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT
v.
EDITH NEMIROFF, APPELLEE



Appeal from the Order of the Court of Common Pleas of Delaware County in case of Edith Nemiroff v. Commonwealth of Pennsylvania, Department of Transportation, No. 12614-3 of 1972.

COUNSEL

William P. Culp, Special Assistant Attorney General, with him Stuart M. Bliwas, Assistant Attorney General, and Robert W. Cunliffe, Deputy Attorney General-Chief Counsel, for appellant.

Peter J. Nolan, for appellee.

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

Author: Rogers

[ 42 Pa. Commw. Page 479]

The Commonwealth's Department of Transportation (PennDOT) has appealed from an order of the Court of Common Pleas of Delaware County, granting Edith Nemiroff's motion for a new trial in this eminent domain case. We affirm.

On December 4, 1972 PennDOT filed a declaration of taking of Mrs. Nemiroff's property, located in Chester Township, Delaware County, for the purpose of constructing the Commodore Barry Bridge. PennDOT paid Mrs. Nemiroff $68,400 in estimated just compensation and a Board of View awarded her damages of $110,000. Both PennDOT and Mrs. Nemiroff appealed.

At the jury trial in the court below PennDOT's expert witness testified that the value of the property on the date of taking was $68,400. Mrs. Nemiroff's expert testified to a value of $150,000. On direct examination Mrs. Nemiroff testified that she had received $68,400 as estimated just compensation. After deliberating for several hours, the jury returned a slip of paper containing the following questions:

1. Does the amount have to be either $68,400.00 or $150,000.00?

2. Can we set our own price?

The court, apparently with the agreement of counsel for both parties, answered no to the first question and yes to the second. The jury deliberated further and returned a verdict of "zero compensated." The court then instructed the jury that it must return a verdict in a specific amount and that it must disregard the amount already received by Mrs. Nemiroff as estimated just compensation. The jury retired again and after several minutes of deliberation asked the court to "send the right amount already received." The court called the jury back into the jury box and again

[ 42 Pa. Commw. Page 480]

    instructed it not to consider the amount of compensation already received by Mrs. Nemiroff. At this point, one juror passed a slip of paper to the court asking "what was the amount stipulated by the State appraiser." The court told the jury that the court's recollection, which was not controlling, was that PennDOT's witness testified to a value of $68,400. The jury retired for a third time and after seven minutes of deliberation, returned with a ...


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