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JEFFREY M. GROSS AND SHERRY F. GROSS v. JACKSON TOWNSHIP (06/01/84)

filed: June 1, 1984.

JEFFREY M. GROSS AND SHERRY F. GROSS, HIS WIFE
v.
JACKSON TOWNSHIP, A MUNICIPAL CORPORATION, APPELLANT



No. 95 Pittsburgh 1983, Appeal from the Judgment entered in the Court of Common Pleas, Civil Division, of Butler County at No. A.D. No. 79-1379, Book 117, page 223.

COUNSEL

Kenneth J. Nolan, Pittsburgh, for appellant.

Philip P.G. Lope, Zelienople, for appellees.

Wieand, Tamilia and Popovich, JJ.

Author: Popovich

[ 328 Pa. Super. Page 227]

This is an appeal from a judgment entered in the Butler County Court of Common Pleas in favor of appellees, Jeffrey and Sherry Gross. We affirm.

Appellees brought an action in trespass against appellant, Jackson Township, to recover for damages to appellees' shrubs and hedges sustained when appellant was working on a township road. The jury found in favor of appellees in the amount of $9,674 and the court added $1,571.97 for delay damages pursuant to 42 Pa.C.S.A. Rule 238.

Appellant raises two issues: (1) whether the trial court erred in refusing to strike certain expert testimony; and (2) whether the trial court properly instructed the jury concerning the measure of damages.

In 1979, appellant undertook a construction project to widen a township road adjacent to appellees' property. In widening the road, appellant removed a length of approximately 360 feet of hedge and various shrubs and trees. Appellant claims this property lay within its right of way. Appellees contend the hedges, etc. were within their property line and based damages on the cost of restoration.

[ 328 Pa. Super. Page 228]

At trial, James Shuty, an experienced survey engineer, testified on behalf of appellees. Based upon his field survey and research, Mr. Shuty stated that the disturbed area was not within the township right of way. (N.T. 51)

The parties agree that appellant is entitled to 33 feet for the width of this road. The method for measuring the width of the road is, therefore, 16 1/2 feet on each side of the centerline. The centerline becomes the basis for measurement, and it has been defined as the "center line of the road as opened upon the ground". Lenhart v. Wright, 286 Pa. 351, 357, 133 A. 495, 498 (1926).

Appellant contends Mr. Shuty's testimony should not have been considered because his expert opinion was not based upon an actual measurement of the road's center ...


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