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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA (07/26/79)

decided: July 26, 1979.

IN RE: CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION OF RIGHT OF WAY FOR LEGISLATIVE ROUTE 1088, SECTION A10, A LIMITED ACCESS HIGHWAY IN TOWANDA AND NORTH TOWANDA TOWNSHIPS AND THE BOROUGH OF TOWANDA. CHARLES J. AND JANICE M. DANNEMANN, APPELLANTS


Appeal from the Order of the Court of Common Pleas of Bradford County in case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, of Right of Way for Legislative Route 1088, Section A10, A Limited Access Highway in Towanda and North Towanda Townships, and the Borough of Towanda. Charles J. and Janice M. Dannemann v. Commonwealth of Pennsylvania, Department of Transportation, No. 349 April Term, 1971.

COUNSEL

Basil C. Clare, for appellants.

Peter J. Comerota, Special Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General-Chief Counsel, for appellee.

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

Author: Macphail

[ 44 Pa. Commw. Page 447]

This is an appeal from an order of the Court of Common Pleas of Bradford County denying Charles J. and Janice M. Dannemanns' (Plaintiffs) motions for judgment N.O.V. and for a new trial.

On June 10, 1971, the Commonwealth of Pennsylvania, Department of Transportation (Commonwealth) filed a Declaration of Taking, appropriating 42.849 of Plaintiffs' original 320 acres and temporarily utilizing 0.1722 acres in the course of construction of Legislative Route 1088, Section A10, known as the Towanda Bypass. The taking severed the original tract leaving two unconnected parcels. At the time of taking, the property was being utilized as a residence with some farming. Included within the take was the main barn of the farm and approximately 22 acres of gravel land.

The Board of Viewers awarded damages in the amount of $81,500. Both parties appealed. The case was tried on June 15, 1977 and a jury rendered a verdict of $61,000.

In reviewing the action by a trial court in dismissing motions for a new trial and judgment N.O.V. in an eminent domain case, we must consider whether the lower court committed an abuse of discretion or error

[ 44 Pa. Commw. Page 448]

    of law, whether the verdict was against the clear weight of the evidence and whether the judicial process has worked a serious injustice. Croop Estate v. Department of Transportation, 38 Pa. Commonwealth Ct. 305, 393 A.2d 41 (1978).

Plaintiffs argue that the lower court erred (1) in refusing to allow cross or direct examination of a valuation witness for the purpose of placing values on individual elements of the taking, (2) in refusing Plaintiffs' request that the jury be charged that it must place itself in the position of a potential purchaser of the tract in determining the value thereof, (3) refusing Plaintiffs' point for binding instructions as stated by Plaintiffs and (4) in excluding evidence as to the amount of gravel taken from Plaintiffs' land which was used in the highway construction and the effect that the presence of gravel on Plaintiffs' land had upon construction bids for the highway. Finally, Plaintiffs contend that the Commonwealth was guilty of fraud in employing knowledge of the gravel to secure a low construction bid, but withholding that same knowledge from its appraisers.

Plaintiffs rely upon this Court's abrogation of the unit rule as found in North Side Deposit Bank v. Urban Redevelopment Authority, 1 Pa. Commonwealth Ct. 274, 274 A.2d 215 (1971), to substantiate their argument that an appraiser may be asked to testify as to the value assigned the separate elements he considered in arriving at his estimate of the market value of the subject tract before and after taking. One of Plaintiffs' valuation witnesses was asked what elements he considered in fixing the before and after value of the subject property. His response was that he divided the property ...


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