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REDEVELOPMENT AUTHORITY CITY PHILADELPHIA v. LUIS E. NUNEZ (09/10/87)

decided: September 10, 1987.

REDEVELOPMENT AUTHORITY OF THE CITY OF PHILADELPHIA, APPELLANT
v.
LUIS E. NUNEZ, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Luis E. Nunez v. Redevelopment Authority of The City of Philadelphia, No. 4488, April Term, 1973.

COUNSEL

William T. Steerman, for appellant.

Herbert Bass, with him, Mark L. Morris, Janet R. Seligman, Fox, Rothschild, O'Brien & Frankel, for appellee.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 109 Pa. Commw. Page 242]

Appellant, the Redevelopment Authority of the City of Philadelphia, filed a declaration of taking on April 26, 1973 against property owned by Appellee, Luis E. Nunez, located at 1614 Summer Street. On August 7, 1975, Appellant filed a writ of possession and paid $65,000 to Appellee, which represented its estimate of just compensation. Appellee contested this estimate, and the matter was heard before a Board of View, which awarded Appellee $140,500. Appellee appealed, and the case was heard de novo before a jury in the Court of Common Pleas of Philadelphia County. The jury returned a verdict for appellee in the amount of $295,000, later molded by the trial court to reflect statutory interest charges, and the $65,000 credit. Appellant filed a motion for a new trial and/or request for remittitur, which were denied by the trial court. Appellant appeals from that order.

The property at issue was a lot, located at 1614 Summer Street, measuring approximately 28' x 111' which contained a 2-story commercial building. Dr. Nunez (Appellee) testified that he bought the building in 1971 and that he planned to add several floors to the existing structure to erect a health maintenance organization (HMO) center which would contain several doctors' offices with attached living quarters. Appellee introduced

[ 109 Pa. Commw. Page 243]

    the testimony of two expert real estate appraisers, who valued his property, respectively, at $375,000 and $300,000 as of the date of the taking. Both of these appraisals were based upon the property's highest and best use as an HMO center. Appellant's expert, considering the highest and best use of the property to be a vacant commercial building, which it was on the date of taking, estimated its value at $67,500.

Our scope of review from an order denying a motion for a new trial is limited to a determination of whether the trial court has manifestly abused its discretion, or committed an error of law. Borough of Tamaqua v. Knepper, 54 Pa. Commonwealth Ct. 630, 422 A.2d 1199 (1980).

The first of Appellant's arguments is that the trial judge erred in explaining Appellee's burden of proof in his charge to the jury. Appellant urges us to adopt a new rule of law to the effect that there will, henceforth, be no burden of proof in eminent domain cases. However, as Appellee points out, Appellant did not preserve this issue for appellate review in that it failed to take exception to the specific portion of the charge concerning the allocation of the burden of proof, although it noted a general exception to the entire charge. As Appellee's position is in accord with long-standing precedent, we must decline to consider this argument. See e.g. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); Zeman v. Canonsburg Borough, 423 Pa. 450, 223 A.2d 728 (1966); Pennsylvania Power & Light Co. v. Gilotti, 39 Pa. Commonwealth Ct. 234, 395 A.2d 624 (1978).

Appellant's second contention is that the testimony of Appellee and his witnesses regarding the highest and best use of the property was so speculative that it should have been stricken upon ...


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