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Commonwealth, Dep't of Transportation v. Peoples Bank of Glen Rock

December 4, 2008

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION
v.
PEOPLES BANK OF GLEN ROCK, ROBERT B. FILER, WANDA D. FILER, B L & B ASSOCIATES, LAWRENCE L. EVELER, SUSAN E. EVELER AND DONALD J. SMITH REAL PLACES, LP, APPELLANT



The opinion of the court was delivered by: Judge McGINLEY

Argued: September 8, 2008

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JIM FLAHERTY, Senior Judge.

OPINION

Real Places, LP (Condemnee) appeals the order of the Court of Common Pleas of York County (trial court) which denied Condemnee's motion for post-trial relief whereby Condemnee sought the admission into evidence of alleged purchases of comparable properties by the Commonwealth of Pennsylvania, Department of Transportation (DOT) outside of condemnation proceedings.*fn1

On August 16, 2002, DOT filed a right of way plan in the York County Recorder of Deeds office. The plan was entitled, "Commonwealth of Pennsylvania Department of Transportation Drawings Re-Establishing Limited Access Highway and Authorizing Acquisition of Right-of-Way for State Route 0083, Section 024 in York County, also State Route 0182." The purpose of this plan was for DOT to acquire land and realign Interstate 83 to alleviate a blind curve, commonly known as "Dead Man's Curve."

On or about September 26, 2002, DOT filed a declaration of taking of 1.002 acres of Condemnee's property in fee simple as a required right of way and a temporary construction easement of .069 acres. Condemnee petitioned for the appointment of a Board of Viewers (Board), and on September 15, 2003, the trial court appointed a Board which convened on October 30, 2003, to view the property. Hearings were conducted on September 2, 2004, January 10, 2005, and January 11, 2005. The Board admitted testimony concerning sales to DOT in lieu of condemnation, as comparable sales, including a sale from ARCO to DOT and a sale from H. Roger Miller (Miller) to DOT. The Board, in its decision, determined that it improperly admitted this evidence and excluded the sales from consideration. The Board awarded general damages in the amount of $695,000.00 for the taking in fee simple of 1.002 acres of Condemnee's property.

Condemnee appealed. DOT presented a motion in limine to prohibit evidence or testimony regarding DOT's purchases of the ARCO and Miller properties. The trial court granted the motion.

Robert Borden (Borden), executive vice president for the Shipley Group*fn2 and responsible for managing the Shipley Group's real estate, testified that the value of the property before the taking was approximately $1,000,000.00. N.T. at 100. Borden explained that after the take "it simply is not enough space in the building . . . to be able to offer the facilities that the motoring public wants nowadays whenever they come into a convenience store. They want to be able to get the things that you typically now see in a convenience store. . . ." N.T. at 101-102. Borden opined that after the take, "my guess would be that it's probably worth 200, $250,000, maybe, but we haven't had any offer on it . . . for . . . even somebody to lease it." N.T. at 108.

Elliott Weinstein (Weinstein), a real estate appraiser and president of Weinstein Realty Advisors, testified on behalf of Condemnee. Weinstein prepared an appraisal and testified that the value of the property before the taking was $975,000, and, after the taking, was $150,000 resulting in just compensation of $825,000. N.T. at 244-245.

Jay D. Matthews (Matthews), a licensed real estate appraiser, testified on behalf of DOT, that in his opinion the value of the property before the taking was $620,000, and the value after the taking was $326,000. As a result, Matthews opined that the just compensation owed to Condemnee was $294,000. N.T. at 406, 413-414.*fn3

Jason Andrew Snyder, an engineer who prepared a "highest and best use" report for the property for use by Matthews while he was employed by C.S. Davidson, testified that he prepared a summary of the possible uses of the property based on the applicable zoning ordinance, topography, and traffic.

The jury returned a verdict in the amount of $415,000.00. Condemnee moved for post-trial relief and challenged the exclusion of the ARCO and Miller purchases. The trial court denied the motion.

Condemnee contends on appeal that the trial court committed an error of law when it excluded the prices paid by DOT for comparable properties on the open market.*fn4

The trial court, like the Board, relied on Scavo v. Commonwealth, 439 Pa. 233, 266 A.2d 759 (1970) when it denied Condemnee's post-trial motion. In Scavo, Angelo and Frank Scavo (the Scavos) owned a 10.94 acre tract of land on the northern side of Moosic Street which was condemned by the Commonwealth of Pennsylvania Department of Highways (Commonwealth) for the purpose of constructing Interstate 81. The Board of View had awarded the Scavos $39,000 plus detention damages. Both parties appealed to the Court of Common Pleas of Lackawanna County. The jury returned a verdict in favor of the Scavos in the ...


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