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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA v. O'NEILL STEEL CO. (06/06/85)

decided: June 6, 1985.

IN RE: CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, OF RIGHT OF WAY FOR LEGISLATIVE ROUTE 1010, SECTION D2, R/W, A LIMITED ACCESS HIGHWAY, IN PLYMOUTH TOWNSHIP. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT
v.
O'NEILL STEEL CO., INC., APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Commonwealth of Pennsylvania, Department of Transportation v. O'Neill Steel Company, Inc., No. 73-1499.

COUNSEL

J. Matthew Wolfe, Assistant Counsel, with him, Edward D. Werblun, Assistant Counsel, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.

Andrew B. Cantor, Wisler, Pearlstine, Talone, Craig & Garrity, for appellee.

Judges Doyle and Barry and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 90 Pa. Commw. Page 40]

This appeal results from an order of the Court of Common Pleas of Montgomery County, Pennsylvania, which denied post-verdict motions filed by the Department of Transportation (DOT) and directed the entry of judgment on a jury verdict of $126,500.00 in favor of O'Neill Steel Company, Inc. (the condemnee).

On February 5, 1978, DOT filed a declaration of taking of a portion of property owned by the condemnee. The property was condemned for necessary highway construction. When DOT and the condemnee were unable to agree on the amount of compensation due, the condemnee filed a petition for the appointment of viewers. Following a February 7, 1981, hearing, the Board of View awarded the condemnee $100,000.00. Following DOT's appeal, a jury awarded the condemnee compensation of $126,500.00. DOT filed a first set of post-verdict motions within ten days after the jury verdict. In the motion, DOT specifically reserved the right to file additional reasons in support

[ 90 Pa. Commw. Page 41]

    of its motion within ten days of the receipt of the trial transcript as provided in Montgomery County Rule of Civil Procedure No. 252. When DOT attempted to file the additional reasons in a timely manner, the trial court refused to consider them as DOT had never sought leave of court to file the additional reasons. The remainder of DOT's post-verdict motions were denied. This appeal followed the entry of judgment.

DOT first argues the jury verdict must be overturned because the jury chose to disregard a video tape which DOT introduced into evidence. In 1973, 1.85 acres of an original 6.05 acre tract were taken by DOT. The property of condemnee housed a steel fabrication plant. The only access to the plant itself was a straight dirt and gravel road which ran over a fifty foot wide access easement. Following the taking, a new access road had to be built. The new access road, however, had a number of curves and turns which purportedly caused difficulties for the condemnee. James O'Neill, condemnee's president at the time of the taking, detailed the difficulties encountered when attempting to remove steel trusses over sixty feet long from the plant. Mr. O'Neill testified that in most instances with trusses over sixty feet in length, a crane had to be used to lift the back of the trailer involved around the turns on the new access road.

At trial, DOT introduced a video tape which showed a truck which was able to successfully negotiate the curves while carrying a 105 foot steel beam. Despite viewing this video tape, the jury brought back a verdict with damages in the exact amount suggested by the condemnee's valuation expert. DOT believes this shows that the jury completely disregarded the video tape; DOT argues that such disregard mandates a new trial. For the following reasons, we disagree with DOT concerning this allegation of error.

[ 90 Pa. Commw. Page 42]

As the trial court correctly stated in its opinion denying ...


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