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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA v. COMMONWEALTH PENNSYLVANIA (07/08/82)

decided: July 8, 1982.

IN RE: CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, ETC. GRAHAM REALTY COMPANY ET AL.
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION. GRAHAM REALTY COMPANY, APPELLANT



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, of Right of Way, for Legislative Route 02302, Section 3T, R/W, A limited access highway, in Ross Township. Graham Realty Company and Bell Federal Savings and Loan Association v. Commonwealth of Pennsylvania, Department of Transportation, No. 1790 January Term, 1975, Sur No. 105 July Term, 1974, Parcel 87.

COUNSEL

Guy L. Warman, with him John Michael Studeny, Guy L. Warman and Associates, P.C., for appellant.

Benjamin B. Wechsler, II, Assistant Counsel, with him Michael J. Creighton, Assistant Counsel in Charge, Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellee, Commonwealth of Pennsylvania.

Thomas J. Dempsey, for appellee, Bell Federal Savings and Loan Association.

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

Author: Macphail

[ 67 Pa. Commw. Page 319]

In this eminent domain appeal Graham Realty Company (Appellant) challenges an order of the Court of Common Pleas of Allegheny County denying Appellant's motions for judgment n.o.v. and a new trial. We affirm.

Appellant, at all times relevant to the instant appeal, has owned a tract of land which has a frontage on McKnight Road in Allegheny County of approximately 430 feet. The property is divided into and leased as four contiguous parcels, each of which is improved with a building used for commercial purposes. One of the parcels is leased to Bell Federal Savings and Loan Association (Appellee).

[ 67 Pa. Commw. Page 320]

On April 2, 1974 the Department of Transportation (DOT) condemned a five foot strip of Appellant's land along McKnight Road in connection with a DOT project to widen the road. Appellant subsequently filed a petition for the appointment of viewers which, as amended, alleged its interest in the property as owner and provided a list of its tenants. Following a hearing at which interested parties offered evidence, the viewers awarded $32,700 to Appellant. No award was made to Appellee. Appellant and Appellee both appealed the award to the trial court. The case was then tried before a jury which rendered a verdict apportioning total general damages of $35,350 to Appellant in the amount of $27,930 and to Appellee in the amount of $7,420.*fn1 Following the denial of its post-trial motions, Appellant perfected its appeal to this Court. There is no complaint as to the total damages awarded; the instant appeal relates only to the apportionment thereof.

Two issues have been presented to us: 1) whether the lease agreement between Appellant and Appellee bars recovery of condemnation damages by Appellee and 2) whether portions of the trial court's charge to the jury constitute reversible error.

Appellant and Appellee entered into a lease agreement commencing on May 1, 1973 for a period of thirty years. The lease contains a condemnation clause which provides as follows:

In the event of condemnation by a public body of the entire premises or a substantial part thereof . . . either ...


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