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R. & S. MILLWORK v. COMMONWEALTH PENNSYLVANIA (05/15/79)

decided: May 15, 1979.

R. & S. MILLWORK, INC., APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Fayette County in case of R. & S. Millwork, Inc. v. Commonwealth of Pennsylvania, Department of Transportation, No. 324 June Term, 1974.

COUNSEL

Robert L. Webster, Jr., with him Webster, Hallal & Webster, for appellant.

Benjamin B. Wechsler, II, Special Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellee.

Judges Mencer, DiSalle and Craig, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 42 Pa. Commw. Page 625]

This is an appeal from an order of the Court of Common Pleas of Fayette County, entered October 31, 1977, denying the motion of R. & S. Millwork, Inc. (condemnee) for a new trial.

[ 42 Pa. Commw. Page 626]

Condemnee owned approximately 18.5 acres of land in Fayette County. In 1974, a declaration of taking was filed by the Commonwealth of Pennsylvania, Department of Transportation (PennDOT/condemnor), pursuant to Section 402 of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. ยง 1-402, by which it acquired approximately one-third of condemnee's property.

Condemnee petitioned for a board of viewers and, after a hearing, was awarded $55,000 in damages. PennDOT appealed to the Court of Common Pleas of Fayette County and, after a trial, condemnee's damages were reduced to $45,973. Condemnee made a motion for new trial which was denied, timely appeal being taken to this Court.

In its motion for new trial, condemnee alleged that a valuation expert hired by condemnor withheld and concealed evidence on cross-examination relevant to the basis of his opinion of the property's valuation, that he withheld such evidence at the direction of condemnor's attorney, that the expert's failure to testify materially prejudiced the outcome of the trial, and that the misconduct and concealment was not discovered until after the trial.*fn1

On appeal, condemnee contends that the lower court's denial of its motion for new trial was a manifest and palpable abuse of discretion.

We must disagree for two reasons:

First: Condemnee failed to substantiate its allegation that condemnor's valuation expert willfully concealed evidence at the ...


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