Fink v. Commonwealth

482 A.2d 281, 85 Pa. Commw. 290, 1984 Pa. Commw. LEXIS 1700
CourtCommonwealth Court of Pennsylvania
DecidedSeptember 24, 1984
DocketAppeal, No. 2602 C.D. 1982
StatusPublished
Cited by13 cases

This text of 482 A.2d 281 (Fink v. Commonwealth) 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
Fink v. Commonwealth, 482 A.2d 281, 85 Pa. Commw. 290, 1984 Pa. Commw. LEXIS 1700 (Pa. Ct. App. 1984).

Opinion

Opinion by

Judge Barbieri,

David and Tobi Fink, appellants in this eminent domain case, (Appellants), appeal here an order of the Court of Common Pleas of Lackawanna County which dismissed their post-trial motion for a new trial after a jury verdict of $149,600.00 for property taken by the Commonwealth of Pennsylvania Department of Transportation (PennDOT), We affirm.

[292]*292On January 18, 1973, a declaration of taking was filed by the Commonwealth for 8.39 acres of land, with the improvements thereon, owned by the appellants. When the parties could not agree on the just compensation for this taking, Appellants petitioned for appointment of a Board of Viewers. On February 4, 1980, after a hearing, the Viewers awarded Appellants $232,000.00 plus $500.00 for attorney and appraiser fees. Both Appellants and PennDO;T appealed and a jury trial in the court of common pleas, including a view of the condemned property, resulted in a verdict for Appellants for $149,600. Appellants’ motion for a new trial was denied by order on September 23, 1982, and the present appeal followed.

On appeal from a trial court decision in an eminent domain case, this- Court’s scope of review is limited to determining whether the court below abused its discretion or committed an error of law. Pidstawski v. South Whitehall Township, 33 Pa. Commonwealth Ct. 162, 380 A.2d 1322 (1977). Appellants allege seven grounds upon which they contend the common pleas court should have granted a new trial. We will address them seriatim.

Appellants’ first contention is that a new trial should have been granted since the jury considered a fact not in evidence. At the conclusion of the trial in this case, Appellants, by way of affidavits, solicited statements from eight of the twelve jurors who sat in this case. Based on these statements, Appellants assert that the jurors accepted as a fact, not in evidence, that PennDOT had paid Appellants $103,000.00 for their house and land and that their verdict only represents an award for other elements of damage. Appellants therefore assert that the true verdict of the jury should have been $252,600.00, the sum of the jury’s award plus $103,000.00 representing an amount for their house and land. Additionally, Appellants con[293]*293tend, based upon the affidavits, that a new trial should be granted since the jury foreman refused to obtain another verdict slip at the request of several jurors. The common pleas court, citing Pittsburgh National Bank v. Mutual Life Insurance Company, 493 Pa. 96, 425 A.2d 383 (1981), rejected such contentions upon its conclusion that the appellants were impermissibly attempting to impeach the verdict of the jury. We agree.

The Pennsylvania rule, adhered to by a majority of jurisdictions, is that a juror is incompetent to testify as to what occurred during deliberations in a jury room, Pittsburgh National Bank, since sound policy reasons dictate that a jury’s deliberations be held inviolable. See Friedman v. Ralph Brothers, Inc., 314 Pa. 247, 171 A. 900 (1934). To this rule, however, exists one narrow exception “ allowing post-trial testimony of extraneous influences which might have affected [prejudiced] the jury during their deliberations.” Pittsburgh National Bank, quoting from Commonwealth v. Sero, 478 Pa. 440, 448, 387 A.2d 63, 67 (1981). This rule was established to accommodate the belief that a person be judged by an impartial and indifferent jury of his peers. Sero. This exception however, only permits a discharged juror to testify as to what the outside influence was, and does not permit a juror to testify as to the effect this influence may have had on their deliberations. Pittsburgh National Bank, citing Commonwealth v. Zlatovich, 440 Pa. 388, 369 A.2d 469 (1970). In the present case, Appellants assert that “it is obvious . . . that the jury did in fact consider some matter not in evidence before it. The jury considered that $103,000.00 had been paid by PennDOT to the Finks for their house and the land taken.” While Appellants make this statement, they have not established, or even alleged, what if any, outside influence was considered by the jury which al[294]*294legedly led them to conclude that $103,000.00 had been paid to Appellants. Absent any evidence that the jury was affected by some outside influence, we must reject Appellants’ contention, since it would necessarily require us to impermissibly inquire into the jury’s deliberative process. Similarly, we conclude that Appellants’ contention regarding the foreman’s alleged conduct cannot also be addressed. We do note, however, that at the close of the trial in this case, the jury was polled in .open court and all but one of the jurors expressed agreement with the verdict as stated by the foreman “in the sum of $149,600.”

Appellants next contend that a new trial should have been granted since the jury’s verdict of $149,-600.00 is against the weight of the evidence, grossly inadequate, and causes substantial prejudice and harm to Appellants. In support of this argument Appellants assert that the jury’s verdict only represented the total of their costs to cure and included nothing for their land and house. In rejecting this argument, the common pleas court examined the record, noted that the PennDQT’s expert witness assessed damages at $93,300.00; that Appellants’ expert witness assessed damages at $393,900.00, and concluded, citing Billings v. Upper Merion Township Authority, 44 Pa. Commonwealth Ct. 622, 405 A.2d 967 (1979), that a new trial should not be granted since the record supported the jury’s valuation, and that, therefore, their verdict was not against the weight of the evidence. We agree. This Court has held that where a jury’s verdict falls well within the range of the testimony on value, as it does here, it is improper to grant a new trial. Lorenzo v. Redevelopment Authority of the City of Philadelphia, 24 Pa. Commonwealth Ct. 593, 358 A.2d 130 (1976). See also Department of Transportation v. McGuire, 41 Pa. Commonwealth Ct. 14, 399 A.2d 134 (1979), and Kopec v. Redevelopment Authority of the [295]*295City of Hazleton, 27 Pa. Commonwealth Ct. 515, 367 A.2d 784 (1976).

During the trial of this case, the jury was given the opportunity to view Appellants’ house which was subject to condemnation, although Appellants’ exercised an option to purchase the house back from PennBOT and relocate it to another part of their land. In the course of cross-examination of PennBOT’s real estate expert by Appellants ’ counsel on the value of Appellants ’ property, the following ensued: “Q. Was it a nice property? A. Yes, it was. Q. Was it a beautiful home? A. Yes, it was, and still is.” Appellants’ counsel moved that the last answer be stricken as not responsive. The trial judge denied the motion stating that he did not “think that the witness intended anything other than an honest and direct response” to the question.

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Bluebook (online)
482 A.2d 281, 85 Pa. Commw. 290, 1984 Pa. Commw. LEXIS 1700, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fink-v-commonwealth-pacommwct-1984.