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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA v. O'NEILL STEEL CO. (11/28/86)

decided: November 28, 1986.

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 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 v. O'Neill Steel Company, Inc., No. 73-1499.

COUNSEL

J. Matthew Wolfe, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Henry G. Barr, General Counsel, for appellant.

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

Judges Craig and Palladino, Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 102 Pa. Commw. Page 325]

This appeal arises from the denial by the Court of Common Pleas of Montgomery County of a motion for a new trial filed by the Pennsylvania Department of Transportation (DOT). DOT has asked this court to rule on the admissibility of certain testimony by the condemnee in an eminent domain proceeding. The court of common pleas held that DOT's additional reasons in support of its motion for a new trial were without merit and, as such, the testimony in question was properly admitted. We affirm.

According to the record of the trial court, DOT filed a declaration of taking on February 5, 1973, against a portion of property owned by the O'Neill Steel Company,

[ 102 Pa. Commw. Page 326]

Inc. The property, which is located in Conshohocken, Montgomery County, was needed in conjunction with the construction of a limited access highway. After the parties were unable to agree upon the just compensation due O'Neill for the condemned property, O'Neill filed a petition for appointment of viewers, pursuant to section 402 of the Eminent Domain Code.*fn1 Following a view of the property and a hearing, the viewers awarded O'Neill $100,000 in damages.

DOT appealed the award to the Common Pleas Court of Montgomery County, and a jury trial was held, Judge William T. Nicholas presiding. The jury returned a verdict in favor of O'Neill, awarding $126,500 in damages. DOT's motion for a new trial was denied. DOT appealed that denial to this court, which remanded to Judge Nicholas for a consideration of additional reasons advanced by DOT in support of its motion for a new trial.

Upon remand, Judge Nicholas ruled that DOT's additional reasons were meritless and again denied the motion for a new trial. From that denial, DOT has brought this appeal.

The controversy in this case centers around a new access road which DOT constructed for O'Neill. Because the taking cut off the remainder of O'Neill's property from a 50-foot easement previously used as access by O'Neill, the new access road was necessary to provide O'Neill with access to its steel fabricating plant.

According to the record, the old easement involved a straight dirt road, while the new access road contains two 90 degree turns and a third gradual turn. At trial, James O'Neill, president of O'Neill, presented testimony ...


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