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WEST PENN POWER COMPANY v. EDNA THOMAS (06/25/80)

decided: June 25, 1980.

WEST PENN POWER COMPANY, APPELLANT
v.
EDNA THOMAS, RAYMOND HALL AND LEEMAN HALL, AND/OR ESTATE OF MARY A. HALL, DECEASED, APPELLEES



Appeal from the Order of the Court of Common Pleas of Beaver County in case of Edna Thomas, Raymond Hall and Leeman Hall and/or Estate of Mary A. Hall, deceased v. West Penn Power Company, No. 702 of 1975.

COUNSEL

Lee E. Whitmire, Jr., with him Gregory K. Douglass, Whitmire & Verlihay, for appellant.

Samuel J. Orr, III, Wilson & Orr, for appellees.

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

Author: Mencer

[ 52 Pa. Commw. Page 348]

The West Penn Power Company (West Penn) has appealed from an order of the Court of Common Pleas of Beaver County denying West Penn's motion for a new trial in an eminent domain case. 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 action in granting or refusing such a motion will not be reversed in the absence of a manifest abuse of discretion or a clear error of law. Beyrand v. Kelly, 434 Pa. 326, 253 A.2d 269 (1969). In reviewing the grant or refusal of a new trial to determine whether there has been a manifest abuse of discretion, we must view all the evidence in the record. Noel v. Puckett, 427 Pa. 328, 235 A.2d 380 (1967).

We have carefully read and studied the record in this case. After a consideration of the facts and circumstances established therein, we conclude that the reasons given by the trial court in denying a new trial do justify its ruling and that the trial court was not guilty of a manifest abuse of discretion. Further, we do not perceive how we could better discuss and explain the justification for the trial court's decision than to set forth the following portion of the able opinion of President Judge Sawyer:

On October 23, 1973, the defendant, West Penn Power Company, by resolution appropriated a right of way for the erection of a transmission line over 2.3 acres of the plaintiffs' farm (a 101-acre tract) situated in Center Township, Beaver County, Pennsylvania. On

[ 52 Pa. Commw. Page 349]

April 18, 1975, the defendant petitioned for leave to set bond and on June 27, 1975, it petitioned the Court to have a Board of Viewers appointed in order that damages resulting from the condemnation could be assessed. After a hearing on September 14, 1976, the Board found that the date of the taking of the 2.3 acres was October 23, 1973, awarding damages of $13,000. The plaintiffs appealed and the case was tried before this Court. On January 17, 1979, the jury returned a verdict awarding damages to the plaintiffs in the amount of $32,000. The defendant has filed a motion for a new trial.

Most of defendant's averments of error revolve around the Court's permitting the plaintiffs' expert, Stuart Lindsay, to give his opinion of fair market value after having stated an improper and, according to the defendant, prejudicial definition of that term. Lindsay initially defined fair market value as 'the present worth of future benefits,' and allowed that this was the definition he preferred. He immediately went on to give another definition substantially similar to that set forth in [Section 603 of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. ยง 1-603] (Code), stating 'that it is the price, estimated in terms of money, that a willing buyer would pay a willing seller at a given time for a parcel of real estate, with both parties being familiar with all of the uses to which this parcel of real estate could be put.'

Over the defendant's objection, Lindsay was permitted to give his opinion as to fair market value provided that it was based upon the second definition. Lindsay again defined ...


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