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GAMMA SWIM CLUB v. COMMONWEALTH PENNSYLVANIA (02/18/86)

decided: February 18, 1986.

GAMMA SWIM CLUB, INC., APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Delaware County in the case of Gamma Swim Club, Inc. v. Commonwealth of Pennsylvania, Department of Transportation, No. 83-11611.

COUNSEL

John T. Mulligan, Lord & Mulligan, for appellant.

Scott M. Olin, Assistant Counsel, with him, Edward D. Werblun, Assistant Counsel, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellee.

Judges Craig and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 95 Pa. Commw. Page 168]

Gamma Swim Club, Inc. appeals from an order of the Court of Common Pleas of Delaware County sustaining preliminary objections of the Department of Transportation (department) to the swim club's petition for the appointment of viewers alleging a de facto eminent domain taking.*fn1

Also before us is the swim club's motion to remand.

Motion to Remand

The swim club has requested a remand to the trial court to allow it to present evidence as to matters which have occurred since the hearing in May, 1984. This court is familiar with motions to remand because the lower court or administrative body failed to make necessary findings of fact or the findings of fact and conclusions of law were inconsistent, or because the applicable law had changed since the original proceeding. This court is also familiar with motions for a new trial to consider after-acquired evidence. However, neither statute nor case law provides for consideration of events which have occurred since the

[ 95 Pa. Commw. Page 169]

    original proceeding. Because the swim club's motion most closely resembles a motion for new trial to consider after-acquired evidence, we will evaluate the motion before us in that light.

The party requesting a new trial must demonstrate that the after-acquired evidence: (1) was discovered after the trial; (2) could not have been obtained by reasonable diligence in time for trial; (3) is not cumulative or merely to impeach credibility; and (4) is likely to compel a different result. R. & S. Millwork, Inc. v. Department of Transportation, 42 Pa. Commonwealth Ct. 624, 401 A.2d 587 (1979).

The swim club asserts in its motion that "the additional evidence it now has is [not] necessary to its case." That cautious assertion negates the requisite that the evidence to be considered is likely to compel ...


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