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DAVID FINK AND TOBI FINK v. COMMONWEALTH PENNSYLVANIA (09/24/84)

decided: September 24, 1984.

DAVID FINK AND TOBI FINK, HIS WIFE, APPELLANTS
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Lackawanna County in case of David Fink and Tobi Fink, his wife v. Commonwealth of Pennsylvania, Department of Transportation, No. 39 May Term, 1973.

COUNSEL

Thomas J. Dempsey, with him, Harry P. O'Neill, Epstein, O'Neill & Utan, for appellants.

John V. Rovinsky, Assistant Counsel, with him, Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellee.

Judges Rogers, Palladino and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.

Author: Barbieri

[ 85 Pa. Commw. Page 291]

David and Tobi Fink, appellants in this eminent domain case, (Appellants), appeal here an order of the Court of Common Pleas of Lackawanna County which dismissed their post-trial motion for a new trial after a jury verdict of $149,600.00 for property taken by the Commonwealth of Pennsylvania Department of Transportation (PennDOT). We affirm.

[ 85 Pa. Commw. Page 292]

On January 18, 1973, a declaration of taking was filed by the Commonwealth for 8.39 acres of land, with the improvements thereon, owned by the appellants. When the parties could not agree on the just compensation for this taking, Appellants petitioned for appointment of a Board of Viewers. On February 4, 1980, after a hearing, the Viewers awarded Appellants $232,000.00 plus $500.00 for attorney and appraiser fees. Both Appellants and PennDOT appealed and a jury trial in the court of common pleas, including a view of the condemned property, resulted in a verdict for Appellants for $149,600. Appellants' motion for a new trial was denied by order on September 23, 1982, and the present appeal followed.

On appeal from a trial court decision in an eminent domain case, this Court's scope of review is limited to determining whether the court below abused its discretion or committed an error of law. Pidstawski v. South Whitehall Township, 33 Pa. Commonwealth Ct. 162, 380 A.2d 1322 (1977). Appellants allege seven grounds upon which they contend the common pleas court should have granted a new trial. We will address them seriatim.

Appellants' first contention is that a new trial should have been granted since the jury considered a fact not in evidence. At the conclusion of the trial in this case, Appellants, by way of affidavits, solicited statements from eight of the twelve jurors who sat in this case. Based on these statements, Appellants assert that the jurors accepted as a fact, not in evidence, that PennDOT had paid Appellants $103,000.00 for their house and land and that their verdict only represents an award for other elements of damage. Appellants therefore assert that the true verdict of the jury should have been $252,600.00, the sum of the jury's award plus $103,000.00 representing an amount for their house and land. Additionally, Appellants contend,

[ 85 Pa. Commw. Page 293]

    based upon the affidavits, that a new trial should be granted since the jury foreman refused to obtain another verdict slip at the request of several jurors. The common pleas court, citing Pittsburgh National Bank v. Mutual Life Insurance Company, 493 Pa. 96, 425 A.2d 383 (1981), rejected such contentions upon its conclusion that the appellants were impermissibly attempting to impeach the verdict of the jury. We agree.

The Pennsylvania rule, adhered to by a majority of jurisdictions, is that a juror is incompetent to testify as to what occurred during deliberations in a jury room, Pittsburgh National Bank, since sound policy reasons dictate that a jury's deliberations be held inviolable. See Friedman v. Ralph Brothers, Inc., 314 Pa. 247, 171 A. 900 (1934). To this rule, however, exists one narrow exception "allowing post-trial testimony of extraneous influences which might have affected [prejudiced] the jury during their deliberations." Pittsburgh National Bank, quoting from Commonwealth v. Sero, 478 Pa. 440, 448, 387 A.2d 63, 67 (1981). This rule was established to accommodate the belief that a person be judged by an impartial and indifferent jury of his peers. Sero. This exception however, only permits a discharged juror to testify as to what the outside influence was, and does not permit a juror to testify as to the effect this influence may have had on their deliberations. Pittsburgh National Bank, citing Commonwealth v. Zlatovich, 440 Pa. 388, 369 A.2d 469 (1970). In the present case, Appellants assert that "it is obvious . . . that the jury did in fact consider some ...


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