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CONDEMNATION PREMISES 327-357 SOUTH SECOND STREET (07/25/79)

decided: July 25, 1979.

CONDEMNATION OF PREMISES 327-357 SOUTH SECOND STREET, READING, PA. IN THE CITY OF READING, BERKS COUNTY, PA. BY THE REDEVELOPMENT AUTHORITY OF THE CITY OF READING FOR URBAN REDEVELOPMENT PURPOSES. GRAFF BROTHERS SCRAP IRON AND METAL WORKS, A/K/A GRAFF BROS. SCRAP IRON AND METAL COMPANY, APPELLANT


Appeal from the Order of the Court of Common Pleas of Berks County in case of Condemnation of Premises 327-357 South Second Street, Reading, Pennsylvania, in the City of Reading, Berks County, Pennsylvania by the Redevelopment Authority of the City of Reading for Urban Redevelopment Purposes; Owner: Graff Brothers Scrap Iron and Metal Works v. Redevelopment Authority of the City of Reading, No. 62 May Term, 1971, A.D.

COUNSEL

Frederick G. McGavin, for appellant.

David A. Binder, for appellee.

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

Author: Wilkinson

[ 44 Pa. Commw. Page 430]

This appeal by Graff Brothers Scrap Iron and Metal Works (Condemnee) challenges a decision of the Berks County Court of Common Pleas granting a motion for a new trial filed by the Redevelopment Authority of the City of Reading (Authority). We reverse.

The condemned property, which is the subject of this appeal, consists of approximately 1.5 acres of land situated in the city's M-H, heavy industrial zoning district. Condemnee has conducted a scrap-metal processing business at the site since 1955.*fn1

By its declaration of taking filed on April 14, 1971, the Authority condemned the subject premises. A court appointed board of view filed its report on July

[ 44 Pa. Commw. Page 43110]

, 1973 awarding to Condemnee total damages of $80,500.*fn2 Condemnee appealed to the common pleas court and after four days of testimony the jury impaneled to hear the case awarded total damages of $140,500.*fn3

The Authority filed a motion for new trial which, after argument, was granted by the common pleas court in an opinion and order dated June 21, 1978. It is from this order of the court below that Condemnee now seeks review.

The factual twist in this case arises by virtue of the Condemnee's status as a nonconforming use pursuant to a 1968 amendment to the City of Reading's zoning ordinance and the proper effect, if any, that fact could have on the determination of just compensation.*fn4

A motion for a new trial is addressed to the discretion of the trial court and a decision on such a motion will not be disturbed on appeal except where a manifest abuse of discretion or a clear error of law is evident. Department of Transportation v. McGuire, 41 Pa. Commonwealth Ct. 14, 399 A.2d 134 (1979).

The trial court explained the decision on the motion in the following manner. "[T]he trial judge's inconsistent rulings on objections and his grant of [C]ondemnee's point for charge number 12 may have misled the jury as to the applicable law, ...


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