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THOMAS GEORGE v. COMMONWEALTH PENNSYLVANIA (12/28/82)

decided: December 28, 1982.

THOMAS GEORGE, JR. AND GEORGE ALLEN, EXECUTORS OF THE ESTATE OF ROY ALLEN, TENANTS IN PARTNERSHIP T/A LEHIGH STRIPPING CO., APPELLANTS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Schuylkill County in the case of Thomas George, Jr. and George Allen, Executors of the Estate of Roy Allen, Tenants in Partnership t/a Lehigh Stripping Co. v. Commonwealth of Pennsylvania, Department of Transportation, No. 607 July Term, 1966.

COUNSEL

Alan A. Turner, with him Thomas B. Rutter, Thomas B. Rutter, LTD, for appellants.

Patrick J. LaVelle, Assistant Counsel, with him Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellee.

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

Author: Crumlish

[ 70 Pa. Commw. Page 575]

The Schuylkill County Common Pleas Court, by order, denied Thomas George, Jr., and George Allen's (condemnees) motion for a new trial. Condemnees appeal. We reverse and remand.

In June, 1966, the Commonwealth filed a Declaration of Taking condemning a portion of condemnees' property for construction of Interstate 81. A Board of View assessed damages at $70,000; on appeal by the Commonwealth, a jury awarded the condemnees $10, 208.28. The condemnees now appeal, contending that

[ 70 Pa. Commw. Page 576]

(1) the trial court erred by instructing the jury to make certain factual determinations which were stipulated to by the parties; and (2) that the trial court abused its discretion in denying their motion for a new trial based on the inadequacy of the jury verdict. Because we agree with the condemnees' former contention, we will not address the latter.

A motion for a new trial is addressed to the discretion of the trial court based upon the circumstances of the particular case and the resultant decision will not be reversed absent a manifest abuse of discretion or a clear error of law. Arndt v. Central Cambria School District, 7 Pa. Commonwealth Ct. 150, 298 A.2d 682 (1972).

During the first day of trial, counsel for the parties, following an hour-long conference out of the jury's presence, stipulated to certain facts. The court advised the jury of the contents of the stipulations:

THE COURT: For the record and Members of the Jury, the last hour has not been unproductive, because counsel for both sides have entered into an agreement concerning some very basic matters relating to this case which, if they were required to be proved on a step-by-step basis, would consume at least two or three days. They have agreed -- and correct me, gentlemen, if I state it incorrectly -- they have agreed upon the following:

[T]hat on June 17, 1966, the Commonwealth took, under its right of eminent domain, the sum of 128.66 acres of the acreage [belonging to the condemnees]. Counsel also agreed that in addition to the amount of acreage actually taken that the condemnation ...


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