Nixon Hotel, Inc. v. Redevelopment Authority

315 A.2d 366, 11 Pa. Commw. 519, 1974 Pa. Commw. LEXIS 1137
CourtCommonwealth Court of Pennsylvania
DecidedJanuary 18, 1974
DocketAppeal, No. 468 C.D. 1973
StatusPublished
Cited by14 cases

This text of 315 A.2d 366 (Nixon Hotel, Inc. v. Redevelopment Authority) 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
Nixon Hotel, Inc. v. Redevelopment Authority, 315 A.2d 366, 11 Pa. Commw. 519, 1974 Pa. Commw. LEXIS 1137 (Pa. Ct. App. 1974).

Opinion

Opinion by

President Judge Bowman,

Appellee, Redevelopment Authority, filed a declaration of taking under the Eminent Domain Code1 in Butler County to which the appellant, Nixon Hotel, Incorporated, filed preliminary objections raising the questions of the sufficiency of appellee’s bond, appellee’s right and power to take and the procedure followed by appellee, alleging bad faith, unreasonable, arbitrary and capricious action.

Following the filing of an answer to appellant’s preliminary objections, the appellant moved for a jury trial on the preliminary objections, which was granted. To this order appellee appealed to the Supreme Court, which appeal, on appellant’s motion, was quashed.

[522]*522Trial was held on the issues raised by appellant’s preliminary objections and a verdict was returned for the appellee. After motions for Judgment N.O.Y. and for a new trial were denied, appellant appealed to this Court. Numerous issues are presented by this appeal, and since we find them without merit the order of the lower court will be affirmed.

The Nixon Hotel property is located within a 12.8 acre area that was certified as blighted by resolution of the Bitler City Planning Commission and Zoning Commission on January 23,1967.2

After appropriate notice and public hearing, the Council of the City of Butler approved by resolution the Redevelopment Proposal and Redevelopment Area Plan submitted by the Authority as required by law.

Negotiations for acquisition of the appellant’s property by the appellee having failed, the appellee then passed a resolution condemning appellant’s property and filed its declaration of taking.

The trial on appellant’s preliminary objections commenced on May 3, 1972, was continued until May 16, 1972, and proceeded on May 17 and 18, 1972. On May 18,1972, the trial was adjourned until May 23,1972, on which day the trial was concluded with closing arguments and the court’s charge. Appellant’s initial contention is that the delays and adjournments conveyed the impression to the jury that the case was unimportant and due to the complexity of the issues a just decision could not have been rendered.

The record reveals that the trial judge repeatedly advised the jury of the importance of the case, and there is nothing in the record to suggest that the jury believed otherwise. Furthermore, the record reveals that in the pre-trial conference the estimated time of [523]*523the trial was two days. That it considerably exceeded this estimate is no one’s fault, rather the delays were unforeseeable necessitating the adjournments. We cannot say that two adjournments under these circumstances was unreasonable or that the trial judge abused his discretion. Plow City, 122 F. 2d 816 (3rd Cir. 1941), cert. denied, 315 U. S. 798 (1942), cited by the appellant, is inapposite.

The appellant next contends that the trial judge failed to properly instruct the jury as to the burdens of proof required by the appellant and the appellee. Two issues were submitted to the jury for their consideration. The first issue was whether the redevelopment area was blighted as the Authority had certified, and the second issue was whether the Authority acted in bad faith.

As to the question of the power and authority of appellee to condemn, a proper issue is whether the area in question was, in fact, blighted. Faranda Appeal, 420 Pa. 295, 216 A. 2d 769 (1966). And such an issue is properly raised by preliminary objections to a declaration of taking. The burden of proving that the area was in fact blighted is on the Authority.

As regards the second issue of bad faith, the appellant has the burden of proving this allegation and the burden is a heavy one. Pittsburgh School District Condemnation Case, 430 Pa. 566, 575, 244 A. 2d 42, 46 (1968).

Addressing itself to the issues of burdens of proof and presumptions, the trial judge states (R. 435a-437a) : “I think I should also point out to the jury that there is a strong presumption that in exercising municipal powers, municipal governing body has not abused its discretion, but has acted in good faith. That is only a presumption, but it can be overcome by other facts.” As regards the parties’ burdens of proof:

[524]*524“In this case it is incumbent upon the Redevelopment Authority to establish that the area is blighted. In other words, the Authority has the burden of proof m showing the area to be blighted.

“In respect to the contention of the Nixon Hotel Incorporated, it charges that the authority acted in bad faith, unreasonably, arbitrarily, capriciously, discriminatorily and abused its power. It is the burden of the Niooon Hotel to establish these allegations of bad faith, unreasonableness, arbitrariness, capriciousness and discrimination . . . .” (Emphasis added.)

“From all of the testimony, what the jury is going to have to determine really boils down to two things:

“Number One: Whether the project area was blighted.

“It is incumbent upon the plaintiff, which is the Redevelopment Authority in this case, to prove by a preponderance of the evidence that the entire project was blighted.

“Now whether the other actions were arbitrariness, bad faith, unreasonableness, capriciousness and so on in respect to the entire project area, the burden of proving that is on the Nixon Hotel. They must do this by the preponderance of the evidence likewise.

“But this burden here is a heavy one, because of the fact that such allegations of bad faith and so on are made which certainly have a connotation of something ulterior,” (Emphasis added.)

It is difficult to see how the trial judges could more clearly have delineated the issues in this case. That the varying burdens of proof are explained consecutively rather than at different instances in the charge serves to clarify not obfuscate the issues. The jury is better able to appreciate the distinction between the two burdens.

Appellant next contends that the trial court committed error in sustaining appellee’s objections to ap[525]*525pellant’s “expert” witnesses testifying on the issue of blight. Whether or not to permit a witness to testify is discretionary with the court. Laubach v. Haigh, 433 Pa. 487, 491, 252 A. 2d 682, 683 (1969). And the trial court will not be reversed unless there is a clear abuse of discretion. Laubach v. Haigh, supra, 433 Pa. at 491, 252 A. 2d at 683.

A review of the record reveals that none of appellant’s proposed expert witnesses qualified as an expert so as to express an opinion on the question of blight. Mr. War nick was the appellant’s first expert, a registered professional engineer. This witness on cross-examination, while stating that he was familiar with the area, admitted he had never studied or investigated the area. Furthermore, he admitted he was not a certified planner and that he had no experience in the field of planning and zoning or development.

Mr. Powell, a registered architect in Pennsylvania, was appellant’s next proffered expert. Mr. Powell testified that the last project he worked on in the area was in 1960. The court held that this was too remote in time and sustained appellee’s objection to qualifying him as an expert.

Finally, the appellant called Mr.

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Bluebook (online)
315 A.2d 366, 11 Pa. Commw. 519, 1974 Pa. Commw. LEXIS 1137, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nixon-hotel-inc-v-redevelopment-authority-pacommwct-1974.