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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA v. COMMONWEALTH PENNSYLVANIA (08/28/79)

decided: August 28, 1979.

IN RE: CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, OF RIGHT OF WAY FOR LEGISLATIVE ROUTE 1023, SECTION 13, DEED BOOK 509, PAGE 302, CLAIM NO. 3702545. RICHARD E. WHITTAKER AND CAROLYN G. WHITTAKER, APPELLANTS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Lawrence County in case of Richard Whittaker v. Commonwealth of Pennsylvania, Department of Transportation, No. 279-1969.

COUNSEL

William R. Balph, Jr., with him Chambers, Nicolls, Balph & Paul, for appellants.

Jeffrey L. Giltenboth, Special Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Edward G. Biester, Jr., Attorney General, for appellee.

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

Author: Mencer

[ 45 Pa. Commw. Page 262]

In July 1965, Richard E. Whittaker and Carolyn G. Whittaker (condemnees) acquired a 109-acre tract of land in Neshannock Township, Lawrence County, Pennsylvania. The easterly portion of the tract, consisting of approximately 34 acres, was a level plateau and was zoned for residential use. The westerly portion of the tract, comprising approximately 75 acres, was zoned industrial and steeply descended to the Shenango River.

On October 22, 1969, the Commonwealth of Pennsylvania filed a declaration of taking, involving slightly in excess of 14 acres, for highway purposes, and the land condemned was located near the center of the plateau portion of condemnees' property.

A board of viewers was appointed, and it made an award of damages to the condemnees in the sum of $90,000. The Commonwealth appealed from this award to the Court of Common Pleas of Lawrence County and, after trial, a jury returned a verdict for damages relative to the property condemned in the amount of $10,400. Following denial of a motion for a new trial, the condemnees filed a timely appeal to this Court.

Our scope of review is limited in an appeal from a motion for a new trial. 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 ruling in granting or refusing such a motion

[ 45 Pa. Commw. Page 263]

    will not be reversed in the absence of a manifest abuse of discretion or a clear error of law. Gallo v. Redevelopment Authority of Sharon, 19 Pa. Commonwealth Ct. 71, 339 A.2d 165 (1975).

On appeal here, the condemnees assert four reasons why the trial court should be reversed:

First, the trial court abused its discretion in refusing to grant a continuance of the trial because inclement weather prevented an adequate view. It is condemnees' contention that the deep snow at the time of the jury view prevented the jury from adequately ...


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