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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA (12/10/85)

decided: December 10, 1985.

IN RE: CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, OF RIGHT OF WAY FOR LEGISLATIVE ROUTE 52, SECTION 19 R/W, AND LEGISLATIVE ROUTE 1101, SECTION F09, A LIMITED ACCESS HIGHWAY LOCATED IN THE TOWNSHIPS OF CAMBRIA AND MUNSTER -- PROPERTY OF: CHRIST CONTAKOS AND IRENE CONTAKOS, HUSBAND AND WIFE. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT


Appeal from the Order of the Court of Common Pleas of Cambria County in case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, of Right of Way for Legislative Route 52, Section 19 R/W, and Legislative Route 1101, Highway located in the Townships of Cambria and Munster. Property of: Christ Contakos and Irene Contakos, husband and wife, No. 1981-307.

COUNSEL

Christine M. Santone, Assistant Counsel, with her, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.

Richard J. Green, Jr., for appellees.

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

Author: Kalish

[ 93 Pa. Commw. Page 405]

The appellees, Christ and Irene Contakos, were the owners of 33.759 acres of vacant ground. The appellant, Department of Transportation (DOT), condemned a part of the appellees' land, leaving a remainder of 13.149 acres. Prior to the taking, the property had 200 feet of access directly onto U.S. Route 22. After the taking, the remainder had access by means of a newly constructed road which is substantially more restrictive as to access than the original road. U.S. Route 22 was converted to a limited access highway. Before the Court of Common Pleas of Cambria County, the property owners' valuation expert gave a before-value of $405,000 and an after-value of $66,000, assessing damages at $398,500. DOT's valuation expert gave a before-value of $51,500 and an after-value of $22,500, assessing damages at $29,000. The jury fixed the damages at $240,000.

On appeal to this court, DOT contends that the verdict was against the weight of the evidence; that the property owners' valuation expert was not qualified; and that the property owners' valuation expert's testimony contained errors and misstatements in connection with his use of comparable properties in determining the fair market value, particularly with respect

[ 93 Pa. Commw. Page 406]

    to his testimony regarding the concept of "access." The common pleas court denied DOT's motion for a new trial. We affirm.

The appellant, DOT, in its motion for a new trial contended that the testimony of the property owners' real estate expert should be stricken and the witness disqualified since his testimony was error-ridden and contained what DOT refers to as "incredibilities." Thus, says DOT, his opinions were not of a qualified real estate expert.

Our scope of review when we are considering the denial of a new trial is limited to a determination of whether the trial court abused its discretion or committed an error of law. Fink v. Commonwealth, 85 Pa. Commonwealth Ct. 290, 482 A.2d 281 (1984).

In examining the record it shows that the jury had before it not only the expert's qualifications as set forth below, but also the extensive examination and cross-examination on the judicially determined comparable properties and on the matter of access as it affected after-value.

Whether there were any "incredibilities" or errors or inconsistencies goes to the weight of the evidence and credibility of the witness. It does not affect its admissibility. The trial judge committed no error in not striking the testimony or disqualifying the witness ...


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