McConn v. Commonwealth, Department of Highways

246 A.2d 677, 431 Pa. 574, 1968 Pa. LEXIS 651

Opinions

Opinion by

Mr. Justice Jones,

The basic issue on this appeal is whether the grant of a new trial in this eminent domain proceeding on the ground that the jury’s “verdict [was] against the weight of credible evidence and thus [was] inadequate” constituted an abuse of judicial discretion.

On April 6, 1961, the Commonwealth, for the purpose of constructing a limited access highway known as Interstate Route 70, condemned 4.643 acres of an 80.556 acre tract of land located in Donegal Township, Washington County, and owned by Richard J. McConn and Mary McConn, his wife. This tract of land was used for dairy farm purposes and improved with a dwelling house, two barns, a milk house and several corn cribs none of which were affected by the taking.

Prior to the taking about 12 acres of McConns’ land abutted on Route 40, was reasonably level and fronted on the highway for a distance of about 800 feet. Part of the taking of the 4 plus acres was in this 12 acre tract.¹ In addition to the piece of land taken from the 12 acre tract, “several other pieces of this farm were condemned: (1) a small tract required for a channel change, (2) a strip on the eastern side of the farm required to relocate the secondary road leading to Dutch Fork Lake, (3) a strip required to relocate National Highway Route 40, made necessary to provide access for the properties that formerly abutted the old Route 40. This new access road, in turn, severed plaintiffs’ farm into two pieces for the first time, causing damage, also, by way of removal and relocation of fences.”²

After efforts to effect an amicable settlement of the damages had failed, McConns petitioned for the appointment of a board of view and the Court of Common Pleas of Washington County appointed such a board. After hearing, the board made an award to McConns of fll,000 and from that award the Commonwealth appealed to the Court of Common Pleas of Washington County. In that court two jury trials took place; after the first trial the jury returned a verdict of $4860³ and the court, on McConns’ motion, set aside this verdict and granted a new trial;⁴ after the second trial the jury returned a verdict of $6,35Q⁵ and the court, on McConns’ motion, again set aside the verdict and granted a new trial.⁶ The propriety of that order is the basis of the instant appeal.⁷

Our analysis of the majority opinion in the court below indicates that the court was motivated to grant a new trial because it believed the verdict was against the “weight of credible evidence” and, thus, inadequate, that the jury failed to accord to the land prior to the taking any commercial value and that the jury must have been influenced by the Commonwealth’s expert witnesses who, in their testimony, ignored comparable values of land in the area.

In this field of the law certain principles, presently pertinent, are well settled: (1) in the exercise of its discretion, a court may set aside a verdict and grant a new trial if the verdict is excessive or inadequate (Baker v. Commonwealth, 401 Pa. 512, 165 A. 2d 243 (1960); Mazur v. Commonwealth, 390 Pa. 148, 134 A. 2d 669 (1957)); (2) to reverse the action of a court granting a new trial “it must clearly appear that the court acted capriciously, arbitrarily, improvidently or palpably abused its discretion” (Baker, supra, p. 514 and authorities therein cited) ; (3) in passing upon the propriety of the grant of a new trial, all of the evidence must be taken into consideration (Baker, supra, p. 515; Ferruzza v. Pittsburgh, 394 Pa. 70, 145 A. 2d 706 (1958)); (4) “The credibility of the oral testimony which was concerned with the fair market value of the property was peculiarly for the jury to appraise and not for the court” (Springer v. Allegheny County, 401 Pa. 557, 560, 165 A. 2d 383 (1960)) ; (5) in passing upon the adequacy or inadequacy of the verdict, the award of the board of view, while a circumstance to be considered, is not controlling (Chiorazzi v. Commonwealth, 411 Pa. 397, 400, 192 A. 2d 400 (1963) ; Schuster v. Pennsylvania Turnpike Commission, 395 Pa. 441, 149 A. 2d 447 (1959)).

' From our independent review of the instant record and, particularly, of the reasons assigned by the court below for its action we are satisfied that the grant of a new trial was not warranted and did constitute an abuse of judicial discretion.

The first reason assigned by the court was that the verdict was against the “Weight of credible evidence”.⁸ This stated reason clearly indicates that the court took upon itself the determination of the credibility of the witnesses and placed its imprimatur of credibility upon McConns’ expert witnesses and deemed not credible the Commonwealth’s expert witnesses. Springer, supra, is particularly apposite to the case at bar. In Springer, one of the assigned reasons for the grant of a new trial was identical with the first reason assigned by the court below in this case, i.e., the verdict was against the weight of the credible evidence. In Springer this Court, unanimous in reversing an order granting a new trial, stated (p. 560) : “The lower court’s assumption that the verdict was against the weight of the credible evidence transgressed the bounds of the judicial function. The credibility of the oral testimony, which was concerned with the fair market value of the property, was peculiarly for the jury to appraise and not for the court. Nor can it properly be said that the verdict was against the weight of the evidence. The value of the land appropriated was the only substantial issue that the jury had to resolve. There was no dispute as to the extent of the property taken, nor its location, condition, topographical characteristics or the plaintiff’s right to recover its fair worth. In arriving at a just determination of the fair market value, the jury had as criteria the customarily widely disparate opinions of the real estate experts who testified for the respective sides. It was the province of the jury to weigh the credibility of the valuation witnesses’ testimony and to determine what the land taken was fairly worth at the time of the condemnation. The jurors had a right to, and undoubtedly did, bring to bear, in appraising the expert testimony, what they had perceived with respect to the property at the time they formally viewed it for trial purposes and further, exercised their own good common sense. To overthrow the verdict on the ground that it was against the weight of the evidence would, in the light of the record, amount to a judicial usurpation of the jury’s province.” When the court below in this case, as did the court below in Springer, took upon itself the determination of the witnesses’ credibility it went beyond its judicial function and its conclusion that the instant verdict was against the weight of the credible evidence did not justify setting aside the instant verdict.

The second reason assigned by the court for the grant of a new trial was that the jury had failed to accord to the land, prior to taking, any commercial value. In its opinion the majority of the court below stated: “For even the Commonwealth experts testified that the sloping 12 acre tract which abutted on the old National Highway had commercial value before the condemnation.” Our review of the record does not lend support to this statement. One Commonwealth expert, G. P. Amanti, did testify that the portion of McConns’ land which fronted on the old highway had potential commercial value but he considered that only 5, not 12, acres had such potential value; moreover, he testified that the demand for commercial property on this stretch of highway was not great and that the “potential commercial value” which existed along the old Route 40 prior to the taking still existed, after the taking, along the new Route 40 and the Hutch Fork Lake Road. The other Commonwealth expert, G. H. Fetherlin, attributed potential commercial value to only 4%, not 12, acres and he agreed with Mr. Amanti that the demand for commercial property along this stretch was not great and that that portion of Me Conns’ property which remained did have, to some extent, potential commercial value. The jury may well have accepted, and probably did, the testimony of these two witnesses who attributed almost minimal commercial value to the property; however, such was the province of the jury and it was for them to believe or disbelieve the testimony of these witnesses. The assumption by the court below that the jury did not give consideration to the question of the commercial value prior to the taking finds no warrant on this record.

The third and last reason assigned by the court was that the Commonwealth’s expert witnesses had ignored comparable sales of land in the area and, in some manner, thereby misled the jury. In the first place, the court permitted these witnesses to testify; in so doing, the qualification or disqualification of these witnesses was for the court to determine and, if the court believed that the lack of knowledge of comparable sales rendered valueless their prospective testimony, the court should not have permitted them to testify. In the second place, the question of the weight to be accorded the testimony of the Commonwealth witnesses was for the jury and, in determining such weight, we cannot assume that the jury did not take into consideration their knowledge or lack of knowledge of sales of comparable land in the area. In addition, the jury may well have considered the sales in the area unreliable by reason of the times of such sales prior to the taking or the distance of the various tracts of land sold from MeConns’ land. We cannot assume, as the court below did, that the jury did not take into consideration comparable sales; to do so would constitute pure speculation and conjecture.

The disparity between the award of $11,000 made by the board and the jury verdict totalling $6,350, the latter being approximately 57% of the former, is not such as per se would justify the grant of a new trial.

We are satisfied from a study of this record that the verdict as rendered was not so evidentiarily unrealistic or inadequate on this record as to justify the grant of a new trial. While in no sense controlling, the fact is that two juries, after hearing all the evidence, have chosen to accept the Commonwealth’s rather than the McConns’ version of the damages actually suffered. Certainly, the reasons assigned by the court for the award of a new trial are not sufficient in the law to set aside this verdict. The action of the court below in granting a new trial constituted an abuse of judicial discretion and must be reversed.

Order reversed. Each party to pay own costs.

Footnotes

1

Much of the emphasis in the court below was placed on the potentiality of the 12 acre tract for use for commercial purposes prior to the taking whereas, after the taking, that which remained of the 12 acre tract abutted on a highway to which access was limited thus rendering, in the opinion of the court below, this 12 acre tract “completely stripped of any roadside commercial value”.

2

From the opinion of the court below.

3

This verdict included damages of $4,000 plus detention damages of $860.

4

The stated basis for such action was that the court deemed the verdict inadequate.

5

This verdict included damages of $5,000 plus detention damages of $1,350.

6

President Judge Sweet filed an opinion in dissent.

7

An appeal was taken to the Superior Court and that Court, in a per curiam opinion, affirmed, by an equally divided vote, the order of the court below. We granted an allocatur.

8

Emphasis added.