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Oliver-Smith v. City of Philadelphia

December 19, 2008

JANELLA OLIVER-SMITH
v.
CITY OF PHILADELPHIA, APPELLANT



The opinion of the court was delivered by: Senior Judge Flaherty

Argued: November 11, 2008

BEFORE: HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JIM FLAHERTY, Senior Judge

OPINION

The City of Philadelphia (City) appeals from an order of the Court of Common Pleas of Philadelphia County (trial court) which denied the City's motion for post-trial relief, in which, the City sought a new trial from a jury verdict returned on September 7, 2007, awarding Janella Oliver-Smith (Appellee) $80,000.00 in damages for the negligent demolition of her property by the City. We reverse and remand for a new trial with the proper charge.

On April 8, 2003, Appellee purchased property located at 700 South 52nd Street in the City of Philadelphia (Property) for $20,000.00. A building that was deemed uninhabitable by both the City and Appellee was situated on such Property.

After Appellee purchased the Property, she contacted the Philadelphia Neighborhood Housing Service (PNHS) to assist her in securing a loan to rehabilitate the Property. PNHS contacted Melvin Esh (Esh), a building inspector, to inspect the Property and provide an estimate for the amount of money needed to repair the building on the Property. Esh estimated the cost of renovation and repair to be $113,500.00. Another contractor, Martin Bean (Bean), inspected the building and estimated the cost of renovation and repair to be $122,590.00.

On December 22, 2003, PNHS agreed to lend Appellee $65,000.00 to renovate and repair the Property. PNHS also agreed to help Appellee secure additional financing to reach the estimate provided by Esh. Appellee successfully received a total mortgage commitment of $125,000.00 for the renovation and repair of the Property.

After Appellee received the mortgage commitments, but before any renovations were made, the City tore down the building on the Property. As the building had been destroyed, the lenders cancelled their loan commitments.*fn1

Thereafter, Appellee sued the City for negligence in tearing down the building.

A jury trial was held, at which testimony was taken as to the value of the Property. Prior to the demolition, the Property with the uninhabitable building was valued at $20,000.00. The amount of the loans that were secured to renovate and repair the Property totaled $125,000.00. The value of the Property after the demolition was $35,000.00. The trial court read, in pertinent part, the following charge to the jury:

Plaintiff is entitled to be compensated for the harm done to her property. If you find that the property was a total loss, damages are to be measured by either it's (sic) market value or it's (sic) special value to the plaintiff, whichever is greater. The plaintiff is entitled to be reimbursed for losses reasonably incurred because of the damage to the property.

Notes of Testimony (N.T.), September 7, 2007, Original Record (O.R.) at 45-46.*fn2

The City objected to that part of the trial court's charge which was based on Section 6.11 of the Pennsylvania Suggested Standard Civil Jury Instructions, 3rd

Edition (Jury Instruction). N.T., September 7, 2007, at 11; Reproduced Record (R.R.), at 82a. The trial court overruled the City's objection. On September 7, 2007, the jury found the City negligent in tearing down the building and ...


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