Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Laura Kaplan v. The Redevelopment Authority of the City of Philadelphia, No. 2535 July Term, 1968.
Leon W. Silverman, for appellant.
Lawrence S. Rosenwald, for appellee.
Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Mencer.
[ 44 Pa. Commw. Page 151]
Laura Kaplan (Kaplan) appeals from an order denying a motion for a new trial in an eminent domain proceeding where a verdict of $6,000 was rendered in her favor. Kaplan was the owner of property in the City of Philadelphia which was condemned by the Redevelopment Authority of the City of Philadelphia (Authority) in 1968. The board of view, after a hearing, awarded damages to Kaplan in the amount of $9,000. The Authority appealed and, after a non-jury trial in the Court of Common Pleas of Philadelphia County, the Honorable Alexander F. Barbieri rendered a verdict of $6,000. Kaplan filed a motion for a new trial which was denied, and this appeal followed.
Our scope of review is limited. 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. Beyrand v. Kelly, 434 Pa. 326, 253 A.2d 269 (1969).
Kaplan raises three questions on this appeal in support of her contention that the trial court abused its discretion by refusing the motion for a new trial.
The assertion is made that condemnor's sole witness testified before the trial court contrary to what he testified before the board of view concerning the number of baths and kitchens within the apartment house property, and therefore his testimony was rendered incompetent and should not have been considered by the trial court. We have examined the record carefully and must conclude that the witness in question did not change his testimony but merely clarified it before the trial court and differed in his opinion
[ 44 Pa. Commw. Page 152]
as to whether or not certain areas of floor space could be described fairly as bathrooms.
In his original testimony before the board of view, the condemnor's witness stated that there was no equipment anywhere in the condemned property and there were only plumbing and setups for one kitchen and one bath. Subsequently, he further inspected the premises and acknowledged that the property had five kitchens and five bathrooms. When testifying before the trial court, the witness testified as follows:
Q. Now, Mr. Sengpiel, how many bathrooms were there in this house? A. I still classify it as one bathroom. Q. One bathroom? A. Yes, sir. Q. And was there equipment, as you call it, in that bathroom? A. Yes, sir. Q. It was there, was it not? A. Yes, sir. Q. Was there equipment in four other rooms that could be called in common parlance bathroom equipment? A. I'll answer it in this fashion. Going through the interior of the property with the owner in the first floor front, the owner identified a closet which was inaccessible by debris and said that that was a bath. I climbed over the debris and observed in that closet one-half of a commode in a closet. I do not classify that as a bath. He identified the kitchen by pointing to two stubs of pipe in the wallpaper and identified this as a kitchen. Where a kitchen sink was lying in a pile of other debris, he identified this as a kitchen. I asked where the ranges were and he said, 'Well, they have been moved around and I ...