Hoffman v. Commonwealth

221 A.2d 315, 422 Pa. 144, 1966 Pa. LEXIS 537
CourtSupreme Court of Pennsylvania
DecidedJune 24, 1966
DocketAppeal, 247
StatusPublished
Cited by20 cases

This text of 221 A.2d 315 (Hoffman v. Commonwealth) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hoffman v. Commonwealth, 221 A.2d 315, 422 Pa. 144, 1966 Pa. LEXIS 537 (Pa. 1966).

Opinions

Opinion by

Me. Justice Eagen,

Catherine Hoffman is the owner of land1 in Lackawanna County comprising approximately 4.6 acres. Improvements thereon include a large drive-in restaurant and a private residence. A portion of the land leased to Gerard X. Powell was used since 1959 for the maintenance and operation of a commercial miniature golf course.

On January 9, 1963, approximately .98 of an acre of the Hoffman land was taken by the Commonwealth in eminent domain proceedings. Included in the condemned portion was the entire section used for the Powell golf course.

[146]*146The board of view awarded damages totalling $36,-500, which included $26,000 for the freehold interest and $10,500 for the lessee’s interest. Both the Commonwealth and Powell appealed. The issue was then tried de novo before a jury in the court of common pleas on September 14, 1964. The jury returned a verdict for the claimants totalling $48,500; including $35,000 damages for the owner and $13,500 for the lessee. Judgments on the verdict were duly entered and the Commonwealth filed one joint appeal.

The Commonwealth contends that serious trial errors and an excessive verdict require the grant of a new trial.

The first assignment of error concerns the refusal of the trial court to grant a requested mistrial, because during the trial the local newspapers published news accounts thereof and mentioned therein the amount of damages reportedly awarded the claimants by the board of view. The Commonwealth argues that this made available to the jury prejudicial information that was inadmissible at trial. (See, Act of June 22, 1964, P. L. 84, No. 6, §703, 26 P.S. §1-703 (Supp. 1965)).2 This argument is devoid of merit.

There is nothing in the record to show that any of the jurors read the news articles involved. They were not polled by the Commonwealth’s counsel, despite ample opportunity to do so. Further, the news accounts were innocuous, non-inflammatory, and there is nothing to indicate that they in any way influenced [147]*147the jury’s findings. The jury awards bore no relationship to the amount of damages as published in the news articles. Refusal of a mistrial under these facts did not constitute an abuse of discretion.

In a criminal case, where the need for the protection of the rights of an accused is much more important than in a situation such as this, it has frequently been held that much more is required to warrant a mistrial than this record manifests. See, Weston v. Commonwealth, 111 Pa. 251, 2 A. 191 (1886); Commonwealth v. Snopek, 200 Pa. Superior Ct. 455, 190 A. 2d 161 (1963); Commonwealth v. Stefanowicz, 133 Pa. Superior Ct. 501, 3 A. 2d 22 (1938).

The Commonwealth next complains that the awards were excessive. Admittedly, there was ample competent evidence to support the jury’s findings. In fact, certain testimony indicated that the fair market value of the land taken was substantially higher than the jury found. The only reason urged in support of the argument of excessiveness is that the jury awards were greater than those given by the board. Such a disparity is not, in itself, grounds for a new trial. See, Brown & Vaughn Dev. Co. v. Commonwealth, 393 Pa. 589, 143 A. 2d 815 (1958), and St. Clair Cem. Assn. v. Commonwealth, 390 Pa. 405, 136 A. 2d 85 (1957). To award a new trial on this ground alone would completely nullify the effect of the right of appeal from the board’s findings and the right to a trial by jury.

The Commonwealth’s most vigorous complaint is directed towards the lessee’s award.

It is first argued that the trial court should have permitted greater latitude in the cross-examination of one of the lessee’s expert witnesses.

During the Commonwealth’s evidence, it developed that there may have been a slight disparity between the description of the land in Powell’s lease and the boundaries of the golf course as it was actually laid [148]*148out on the ground. From this the Commonwealth argued that four of the eighteen holes of the course were located on land not included in the lease and not owned by Catherine Hoffman. However, it was undisputed that an eighteen-hole golf course had been destroyed in the taking. Further, it was not established by proper evidence that any part of the golf course was located on land not owned by Catherine Hoffman.

During the cross-examination of one of Powell’s expert land-value witnesses, the Commonwealth inquired if his opinion as to the value of the leased land taken would be different “if [it] were shown” that Powell “only had a 14 hole miniature golf course.” To this question an objection was sustained; in this we find no error.

The question was hypothetical and assumed a fact not in evidence. Moreover, the Commonwealth maintains that the cross-examination proscribed went to the witness’s credibility. We do not agree. The cross-examination in question had nothing to do with the witness’s credibility in general or his expertise in particular. Credibility means whether or not a witness is being truthful. This was never questioned. What the Commonwealth was actually testing was the competency of the witness’s testimony and, even on this theory, the cross-examination served no purpose since the expert’s testimony was directed to the value of the land taken and not the location thereof.

Finally, the Commonwealth complains that the lessee was improperly permitted to introduce evidence of reproduction costs of the golf course, because of the following colloquy at trial: “Q. Have you any idea, if you could find another location, how much it would cost you to construct a similar golf course? Mr. Van Deusen: We object to this question as not being proper and irrelevant. Mr. Farrell: To be followed by testimony of another witness showing the cost of replace[149]*149ment or construction. The Court: I don’t think that is the measure of damages here. Mr. Farrell: No, but it is permitted as a factor to be considered in the final determination of damages. The Court: We will allow the question. By the Witness [Mr. Powell]: A. Yes, I wrote to 2 manufacturers of miniature golf courses, Taylor Brother and Arnold Palmer Incorporated, and the figures ranged between $19,800 and $25,200.”

The Commonwealth’s only objection to this testimony was on the ground of relevancy. On appeal, the Commonwealth also contends that the testimony was inadmissible, because Powell was relying on a written report of another expert and no notice was given to the condemnor as required by the new code. See, Act of June 22,1964, supra, §705, 2.6 P.S. §1-705(5) (Supp. 1965). However, since no objection on this ground was made at trial, the Commonwealth may not now object to any lack of pre-trial notice concerning this testimony. See, Lewis v. Pittsburgh Rwys. Co., 386 Pa. 490, 126 A. 2d 454 (1956).

Therefore, the only question properly before this Court is whether the lessee of part of a condemned property may testify as to reproduction costs as an element in the valuation which he has put on his interest.

Prior to the adoption of the new code, the standard for all witnesses testifying as to valuation of condemned property was determined by the Act of April 21, 1915, P. L. 159, §1, 26 P.S. §101.

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Hoffman v. Commonwealth
221 A.2d 315 (Supreme Court of Pennsylvania, 1966)

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221 A.2d 315, 422 Pa. 144, 1966 Pa. LEXIS 537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoffman-v-commonwealth-pa-1966.