Commonwealth v. Upholzer

334 A.2d 812, 18 Pa. Commw. 102, 1975 Pa. Commw. LEXIS 869
CourtCommonwealth Court of Pennsylvania
DecidedMarch 24, 1975
DocketAppeal, No. 494 C.D. 1973
StatusPublished
Cited by7 cases

This text of 334 A.2d 812 (Commonwealth v. Upholzer) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Upholzer, 334 A.2d 812, 18 Pa. Commw. 102, 1975 Pa. Commw. LEXIS 869 (Pa. Ct. App. 1975).

Opinion

Opinion by

Judge Mencer,

On March 5, 1969, the Commonwealth of Pennsylvania (Commonwealth), filed a declaration of taking to effect a condemnation of 319.21 acres in Fairfield Township, Westmoreland County. This acreage was owned by W. D. Upholzer and Kathleen E. Upholzer (landowners). Subsequently, the Commonwealth became aware that it owned a portion of the 319.21 acres and, after some dispute, it was stipulated by counsel that the acreage involved in this condemnation was 276.26 acres. On the petition of the Commonwealth, a board of viewers was appointed, and it awarded damages of $60,000 to the landowners.

The landowners appealed this award to the Court of Common Pleas of Westmoreland County, and a nonjury trial was conducted before President Judge David H. Weiss, who viewed the property and found a verdict in favor of the landowners in the amount of $110,504.1 The [105]*105Commonwealth filed exceptions to the verdict which were dismissed by the court en banc on March 21, 1973. Judgment was entered on the verdict and the Commonwealth filed its appeal to this Court.

On August 29, 1973, we made a limited remand to the lower court for the purposes of resolution of the questions pertaining to delay and detention damages. Further hearings were held on September 21, 1973 and February 15, 1974, followed by orders of May 3, 1974 awarding special damages to the landowners for moving expenses, replacement housing expenses, and reimbursement of fees, in the amount of $1,489.50, and awarding delay compensation on $86,904 at 6 percent per annum from March 3, 19692 to October 13, 1972 and on $50,504 from October 13, 1972 until such time as the award is paid in full. The correctness of these orders is also before us on this appeal.

The Commonwealth advances seventeen arguments in support of its overall contention that the lower court’s verdict and orders should be set aside and a new trial granted. Although we have carefully considered each argument made by the Commonwealth, we conclude that only those directed toward the award of delay compensation have merit. Therefore, we will discuss briefly only those arguments of some consequence.

The Commonwealth asserts that the expert valuation witnesses who testified on behalf of the landowners incorrectly based their opinions of value on a speculative future use of the condemned property. The market value of condemned property need not be measured in terms of the existing use of that land. However, recovery based upon a nonexisting use may not be based upon remote chances or future possibilities. Stoner v. Metropolitan Edison Company, 439 Pa. 333, 266 A. 2d 718 (1970). [106]*106To prove a highest and best use, the landowner must establish that the land in question is physically adaptable to such use and that there is a need for such use in the area, which need is reflected in the public market for the property at the time of the condemnation. Shillito v. Metropolitan Edison Company, 484 Pa. 172, 252 A. 2d 650 (1969).

Keeping these principles in mind, we have examined the record and have satisfied ourselves that the evidence presented was sufficient to persuade the lower court that a buyer, at the time of condemnation, would have been influenced by the likely impending development of the property for residential purposes (second homes and vacation dwellings) and recreational uses.

The property here was in the form of a rectangle, with the dimensions of 2700 feet by 4300 feet, located at the top of the Laurel Highlands with a topography sufficiently level to encourage building. Electricity and gas were available to the property, and nine springs thereon assured a water supply of high quality. The property was in timber and was strategically located in regard to roads, proximity to recreational areas and population density. The landowners’ witnesses expressed their opinions as to valuation based on detailed considerations of the suitability and adaptability of the property and a need for it to fulfill existing demand for recreational and vacation or summer residential uses as of the time of condemnation.

The Commonwealth also argues strenuously that it was serious error to permit a witness for the landowners to testify concerning the value of the timber on the condemned property without ten days’ written notice of said testimony having been given to the Commonwealth.

Section 703(2) of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P. L. 84, as amended, 26 P.S. §1 — 708 (2) (Supp. 1974-75), requires the party calling a valuation expert “who has not previously testi[107]*107fied before the viewers” to disclose his name to the opposing party at least ten days prior to trial, along with a statement of his valuation of the condemned property.

We agree with the lower court’s conclusion that this section of the Code “does not apply to a witness, like [the landowners’] forester, who did not testify or even offer testimony on either of these questions [valuation of the property before and after the condemnation and the highest and best use of the property before the condemnation] .”

The timber witness, whose testimony is challenged, was asked to place a value on the timber found on the condemned property. He replied that in his opinion it was $134.84 per acre. The Commonwealth objected to this testimony, but, before a ruling was made on the objection, the attorney for the Commonwealth stated that “if he has a value to the total acres of timber, we’ll allow him to testify to that.” The witness then replied that “[i]t would be in the neighborhood of 27 [to] 28 thousand dollars.”3 We view that the Commonwealth waived its objection to this testimony and cannot be heard now to complain relative to such, testimony. Cf. Werner v. Department of Highways, 432 Pa. 280, 247 A. 2d 444 (1968) ; Whitenight v. Department of Highways, 1 Pa. Commonwealth Ct. 144, 273 A. 2d 752 (1971).

The Commonwealth further contends that the lower court’s verdict was defective and incomplete in that it preserved to the landowners the right of replacement and moving expenses “as will be determined between the [landowners] and the [Commonwealth] at a future time.” Two factors quickly dispose of this issue. First, when, prior to the verdict, the lower court was discussing with counsel the form of the verdict, the attorney for the [108]*108Commonwealth stated the following: “I think at this time it would be unfair of the Commonwealth to insist on estimates, so I think your Honor in entering a verdict, we would preserve the right.” The lower court immediately replied, “The rights of moving expenses and replacement?” and stated, “In the verdict we’ll preserve the rights for replacement and moving expenses; we’ll preserve that,” to which Commonwealth’s attorney replied, “Right.” Secondly, at the hearing held on February 15, 1974, the lower court entertained testimony on the items of special damages which it awarded by order of May 3, 1974. Thus, any incompleteness in the lower court’s action was cured and is no longer a proper basis of trial error.

However, we do find merit in the Commonwealth’s assertion that the lower court did err in awarding the landowners delay compensation prior to October 15,1973. Section 611 of the Code, 26 P.S. §1 — 611 (Supp. 1974-75), provides as follows:

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Cite This Page — Counsel Stack

Bluebook (online)
334 A.2d 812, 18 Pa. Commw. 102, 1975 Pa. Commw. LEXIS 869, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-upholzer-pacommwct-1975.