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decided: September 20, 1985.


Appeal from the order of the Court of Common Pleas of Lackawanna County in case of Scranton Penn Furniture Company v. City of Scranton, No. 80 Civil 5688.


W. Boyd Hughes, Hughes, Nicholls & Lucas, for appellant.

Albert B. Mackarey, Assistant City Solicitor, for appellee.

Judges Doyle and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Judge Palladino dissents. Judge Barry did not participate in the decision in this case.

Author: Barbieri

[ 92 Pa. Commw. Page 46]

Scranton Penn Furniture Company (Scranton Penn) appeals the order of the Court of Common Pleas of Lackawanna County denying its motion for a new trial.

[ 92 Pa. Commw. Page 47]

The City of Scranton (City) condemned a portion of Scranton Penn's property in 1981 for an extension of a street. The condemned portion consisted of a one story loading dock connected to Scranton Penn's main building and the land upon which it was erected. A Board of View found damages in the amount of $19,500 and both Scranton Penn and the City appealed.

A jury trial was held and Scranton Penn's owner, Mr. Jaffe, testified that his damages were $100,000. Scranton Penn's valuation expert, Mr. Goodman, testified, however, that the damages amounted to $70,910. Both Mr. Jaffee and Mr. Goodman based their estimates on the value of the entire property before the condemnation as unaffected thereby and the value of the property after the condemnation as affected thereby.

The valuation expert for the City, Mrs. Erhard, testified that the value of the land and the building taken was $7,500. She did not testify as to the "before" and "after" values of the entire property. Upon the conclusion of Mrs. Erhard's testimony, Scranton Penn moved to strike all of her testimony due to her failure to testify according to the "unit rule."*fn1 The trial court denied this motion, ruling, without elaboration, that Mrs. Erhard's testimony had "some evidentiary value";*fn2 however, the court also acknowledged

[ 92 Pa. Commw. Page 48]

    that the instructions to the jury would have to include a statement as to the proper measure of damages, i.e., the aforementioned "before" and "after" values.

[ 92 Pa. Commw. Page 49]

Counsel for Scranton Penn excepted to this ruling and the trial proceeded.

Thereafter, the trial judge instructed the jury and, in accordance with his earlier ruling on the motion to strike, he specified the appropriate measure of damages.*fn3 After its deliberations, the jury returned a verdict

[ 92 Pa. Commw. Page 50]

    of damages in the amount of $15,000.00. Subsequently, Scranton Penn filed its motion for a new trial,

[ 92 Pa. Commw. Page 51]

    which, after receiving briefs and oral argument from the parties, the common pleas court denied. The instant appeal ensued.

Before this Court, Scranton Penn contends that it is entitled to a new trial because the presence on the record of the testimony of Mrs. Erhard which violated the "unit rule" resulted in prejudice to Scranton Penn in that the jury was permitted to consider an estimate of damages which did not comport with the applicable

[ 92 Pa. Commw. Page 52]

    legal standard. The City responds that a new trial is not warranted because the error, if any, of admitting Mrs. Erhard's testimony was corrected by the trial court in the charge to the jury.

In an appeal from an order refusing a new trial, we are limited to determining whether the common pleas court committed a manifest abuse of discretion or an error of law. Borough of Tamaqua v. Knepper, 54 Pa. Commonwealth Ct. 630, 422 A.2d 1199 (1980).

Initially we note that there is no dispute here over the applicability of the "unit rule" to this matter, nor, we believe, can there be any doubt that Mrs. Erhard's testimony violated that principle. See Dannemann Appeal, 44 Pa. Commonwealth Ct. 445, 404 A.2d 725 (1979). Rather, we must determine whether the admission of her improper testimony was so improper that a new trial on damages is required despite the trial judge's corrective efforts in the charge.

Of course, the admission of improper evidence can in some cases be cured by appropriate instructions from the court. Furey v. Thomas Jefferson University Hospital, 325 Pa. Superior Ct. 212, 472 A.2d 1083 (1984). Nevertheless, some improperly admitted evidence may be so prejudicial that a new trial is required. Trump v. Capek, 267 Pa. Superior Ct. 355, 406 A.2d 1079 (1979). Whether or not the error was corrected involves a consideration of the circumstances under which the evidence was given and its probable effect on the jury. Saunders v. Commonwealth, 345 Pa. 423, 29 A.2d 62 (1942); Furey.

The City, relying on Borough of Tamaqua, argues that it is the province of the jury to weigh credibility and determine the fair market value of the property at the time of taking. Therefore, the City would have us conclude that in this case, the jury's verdict was a product of that process. While we do not dispute the foregoing principle, we believe that Borough of Tamaqua

[ 92 Pa. Commw. Page 53]

    is distinguished from the present case because the Borough of Tamaqua jury viewed the property involved. Accordingly, there existed in the record of that case, evidence upon which the jury, even if it had disregarded all of the other testimony, properly could have based its verdict on the amount of damages. Morrissey v. Commonwealth, 440 Pa. 71, 269 A.2d 866 (1970).*fn4 In the case sub judice, however, no view was taken by the jurors and had the improper testimony of Mrs. Erhard been stricken, the only evidence on damages on the record would have been the amounts in the testimony of Mr. Jaffee and Mr. Goodman.*fn5 And even though a jury may believe all, part, or none, of the testimony of any witness, a jury may not disregard the record evidence as to property values in a condemnation case and substitute its own ideas. Commonwealth v. Herold, 17 Pa. Commonwealth Ct. 148, 330 A.2d 890

[ 92 Pa. Commw. Page 54]

(1975).*fn6 We believe that, under the circumstances of this case, where the jury did not view the property, the verdict of $15,000, being exactly double the amount of damages in the improper testimony of Mrs. Erhard and far below the other amounts in evidence, could only be based on that improper testimony and the decision of the trial court to allow such testimony to remain on the record over Scranton Penn's objection was so prejudicial that the corrective efforts in the charge were unavailing. We must conclude, therefore, that the trial court's refusal to strike the objectionable testimony constituted a manifest abuse of discretion and that a new trial on damages is required.

Accordingly, we will reverse the order of the common pleas court denying a new trial.


And Now, September 20, 1985, the order of the Court of Common Pleas of Lackawanna County, dated July 2, 1984, is reversed and the matter is remanded for a new trial.

Jurisdiction relinquished.

Judge Palladino dissents.

Judge Barry did not participate in the decision in this case.


Reversed and remanded.

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