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DEER CREEK DRAINAGE BASIN AUTHORITY v. PACOMA (02/12/85)

decided: February 12, 1985.

DEER CREEK DRAINAGE BASIN AUTHORITY, APPELLANT
v.
PACOMA, INC., APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Pacoma, Inc. v. Deer Creek Drainage Basin Authority, No. GD 80-6940.

COUNSEL

David E. Johnson, with him, Louis M. Tarasi, Jr., Tarasi & Tighe, P.C., for appellant.

Leonard M. Mendelson, Hollinshead & Mendelson, for appellee.

Judges Rogers, MacPhail and Palladino, sitting as a panel of three. Opinion by Judge Rogers. This decision was reached prior to the resignation of Judge Williams, Jr.

Author: Rogers

[ 87 Pa. Commw. Page 493]

The Deer Creek Drainage Basin Authority (the Authority) appeals from a judgment entered in the Court of Common Pleas of Allegheny County in an eminent domain action between it and a landowner named Pacoma, Inc.

In December, 1977, the Authority condemned a sewer right-of-way over Pacoma's public golf course. A board of viewers awarded Pacoma damages in the amount of $15,000. On appeal to the Allegheny County Court of Common Pleas, a jury returned a verdict for Pacoma in the amount of $45,545. The Authority's motion for a new trial was denied.

We will not disturb a trial court's refusal of a new trial unless that action was a manifest abuse of discretion or was founded upon a clear error of law. Gallo v. Redevelopment Authority of the City of Sharon, 19 Pa. Commonwealth Ct. 71, 339 A.2d 165 (1975).

At the trial of the case in common pleas, Pacoma's president testified that the noise and dust generated by the construction of the sewer line, the removal of trees, and the placement of manholes within the playing area caused a loss of patronage at its golf course. He testified that he had no record of the numbers of patrons. He was permitted to testify from Pacoma's

[ 87 Pa. Commw. Page 494]

    ledgers as to the amount of Pacoma's gross receipts from patrons in years before, during and after the construction. These showed a diminution of gross receipts in the total amount of $65,000 in the relevant after-condemnation seasons of 1978-1979 and 1979-1980. The testimony was offered only as proof of the claimed loss of patronage due to the installation and presence of the sewer and it was admitted only for that purpose. The Authority's objections to this evidence at the trial were that the testimony was not the best evidence, that the ledgers were, and that the evidence was irrelevant and conjectural.

The Authority correctly argues that loss of business is a factor to be considered in determining the depreciation of the market value of a property. Section 602 of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-602, provides that just compensation shall consist of the difference between the fair market value of the condemnee's property interest before the condemnation and as unaffected thereby and the fair market value of his property remaining immediately after such condemnation and as affected thereby. Section 705(1), 26 P.S. § 1-705(1) permits the statement of evidence of all facts and data touching on value. Indeed, the Authority does not contend that loss of business may not be shown to be a result of condemnation adversely affecting after value. It contends that loss of business may not be illustrated by dollar amounts of gross receipts, citing Lancaster Redevelopment Authority Appeal, 425 Pa. 36, 227 A.2d 827 (1967), ...


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