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HERMAN SCOTT v. REDEVELOPMENT AUTHORITY CITY PHILADELPHIA (09/24/79)

decided: September 24, 1979.

HERMAN SCOTT, ALBERT KATZ AND REUBEN KATZ, A PARTNERSHIP, APPELLANTS
v.
REDEVELOPMENT AUTHORITY OF THE CITY OF PHILADELPHIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Herman Scott, Albert Katz and Rueben Katz, a partnership v. Redevelopment Authority of the City of Philadelphia, No. 3891 September Term, 1970.

COUNSEL

Lewis Kates, with him Joseph R. Livesey, for appellants.

Lawrence S. Rosenwald, with him Rosenwald and Pollack, for appellee.

Judges Blatt, DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 46 Pa. Commw. Page 172]

On September 24, 1970, the Redevelopment Authority of the City of Philadelphia (Condemnor) condemned realty located at 647 North Tenth Street, Philadelphia, Pennsylvania. The condemned property, which had a fully equipped bar on the first floor and apartments on each of the second and third floors, was owned by the partnership of Herman Scott, Reuben Katz and Albert Katz (Condemnees). Condemnees claimed just compensation for realty, machinery and equipment, and the diminution in value of their liquor license. The Board of View (Board) viewed the premises and awarded Condemnees damages in the total amount of $28,835.00, allocating $13,000.00 for real estate and $15,835.00 for machinery and equipment (no claim concerning the liquor license was made before the Board).

The Condemnor appealed and requested a jury trial. Before trial, Condemnor gave due notice*fn1 to

[ 46 Pa. Commw. Page 173]

Condemnees that it intended to call John Fasy as a real estate valuation witness at trial. Condemnees served a subpoena upon Fasy the night before the trial began to bring all of his records, pictures and documentation pertaining to all properties on which he relied to determine the value of the condemned property.

At the trial, Condemnees' valuation expert presented testimony that Condemnees' damages consisted of realty -- $17,500.00, machinery and equipment -- $15,835.00, and liquor license -- $7,500.00 less $2,500.00 for the sale thereof. Fasy, the sole witness for the Condemnor, testified to damages to the realty of $6,900.00. The Condemnor presented no testimony with respect to the machinery and equipment or the diminution in value of the liquor license. The jury returned a verdict of $18,000.00, allocating $11,500.00 for real estate, $6,500.00 for machinery and equipment and nothing for the liquor license.

Condemnees filed timely motions for a new trial and judgment n.o.v. The denial of those motions is the subject of the instant appeal.

[ 46 Pa. Commw. Page 174]

The first issue raised by the Condemnees is whether the trial court erred in refusing to charge the jury that if they believed the testimony of the Condemnees' expert valuation witness regarding the value of the machinery and equipment, they were bound by that witness's testimony since there was no other testimony regarding the value of those items. Although our decision in March Brothers v. Redevelopment Authority Page 174} of Philadelphia, 20 Pa. Commonwealth Ct. 212, 342 A.2d 131 (1975), does seem to lend some support to Condemnees' argument, we are of the opinion that the trial court correctly charged the jury in accord with the law as set forth in ...


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