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COMMONWEALTH PENNSYLVANIA v. LEROY E. FAKE AND FLORENCE M. DITZLER (08/13/79)

decided: August 13, 1979.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF GENERAL SERVICES, APPELLANT
v.
LEROY E. FAKE AND FLORENCE M. DITZLER, HEIRS OF EDWARD D. FAKE, A/K/A EDWARD FAKE, APPELLEES



Appeal from the Order of the Court of Common Pleas of Lebanon County in case of Leroy E. Fake and Florence M. Ditzler, Heirs of Edward D. Fake, a/k/a Edward Fake v. Department of General Services of the Commonwealth of Pennsylvania, No. 142 of 1976.

COUNSEL

H. Warren Ragot, Assistant Attorney General, with him Theodore A. Adler, Chief Counsel, for appellant.

Peter J. Dubinsky, for appellees.

Judges Crumlish, Jr., Blatt and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 45 Pa. Commw. Page 47]

This is an appeal by the Department of General Services of the Commonwealth of Pennsylvania (condemnor)

[ 45 Pa. Commw. Page 48]

    from an order of the Court of Common Pleas of Lebanon County denying condemnor's motion for a new trial. We affirm the lower court.

In 1976, the condemnor condemned two tracts of land owned by Leroy Fake and Florence Ditzler (condemnees), consisting of an eight-acre and a sixty-one-acre tract, separated by a public road. The condemnees also owned, by separate deed, a mountain tract of approximately 112 acres, located directly behind the 61-acre tract. At the time of taking, the condemnor took the entire 61-acre tract, leaving condemnees no access to their 112 acres. However, at the time of the jury trial, the condemnor granted the condemnees a 20-foot right-of-way across the 61 acres, providing access to the 112 acres to that extent.

After the condemnation, a board of viewers awarded condemnees $104,000.00 in damages. Both parties appealed to the lower court, pursuant to Section 515 of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. ยง 1-515. A jury awarded the condemnees $159,000.00 in damages. The condemnor filed a motion for new trial, which the lower court denied. The condemnor then appealed to this Court.

At trial, the condemnees made a substantial effort to show damage to the 112 acres in addition to the damages to the condemned 69 acres. They offered evidence that the highest and best use of the 112 acres was for residential and recreational development purposes, and that the twenty-foot access granted by the condemnor was insufficient to permit that use.*fn1

[ 45 Pa. Commw. Page 49]

A basic problem in this case is whether the 112 acres must be treated separately from the 69 acres in determining damages, or as part of a single tract comprising it and the 69 acres. At trial, the parties were apparently uncertain which of those approaches to apply to the 112 acres. Therefore, the record is confusing on that point, and ...


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