Nobel v. West Penn Power Co.

388 A.2d 781, 36 Pa. Commw. 577, 1978 Pa. Commw. LEXIS 1201
CourtCommonwealth Court of Pennsylvania
DecidedJuly 19, 1978
DocketAppeal, No. 1894 C.D. 1977
StatusPublished
Cited by9 cases

This text of 388 A.2d 781 (Nobel v. West Penn Power Co.) 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
Nobel v. West Penn Power Co., 388 A.2d 781, 36 Pa. Commw. 577, 1978 Pa. Commw. LEXIS 1201 (Pa. Ct. App. 1978).

Opinion

Opinion by

Judge Mencer,

On April 19,1963, Max Nobel and Helen Nobel, his wife (appellants) acquired from Marjorie B. Boyd, a widow, 251 acres of land in Fayette County. The purchase price was $6,301.26. On April 15, 1965, the West Penn Power Company (appellee) filed a bond in condemnation to acquire a right-of-way for the purpose of erecting one transmission tower and multiple high-tension power lines across a section of the appellants’ land. The area affected by the right-of-way was 10.789 acres, and appellants may use this acreage in any manner which does not interfere with the transmission tower and power lines.

A board of view, after hearing, awarded damages to the appellants in the amount of $10,000. Appellants appealed this award, and, after trial in the Court of Common Pleas of Fayette County, a jury returned a verdict for the landowners in the amount of $4,060. Appellants’ motion for a new trial was denied and this appeal followed. We affirm.

Appellants raise six questions on this appeal: Was it fundamental error for the court below to charge the jury that appellee contended no economic loss to appellants, contrary to testimony? Was it error to permit a witness for appellee to testify as an expert mining engineer over objection? Was it-prejudicial error [579]*579to refuse rebuttal evidence of appellants to refute part of appellee’s defense? Was tbe verdict contrary to tbe evidence? Was tbe verdict inadequate? And was the refusal to admit evidence of separate value of coal a deprivation of appellants’ constitutional guarantee? The first question we must decide is which of these issues are properly before us.

Because appellants failed to specifically object to the trial court’s instruction that appellee contended no economic loss to appellants, we will not consider this allegation of error. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). Appellants’ post-trial motion for a new trial did not raise the issues concerning the propriety of permitting a witness to testify as an expert mining engineer and the refusal of certain proffered rebuttal evidence. Appellants therefore are precluded from raising those issues on appeal. Issues not properly raised and preserved in the trial court will not be reviewed for the first time on appeal. Commonwealth v. Reid, 458 Pa. 357, 326 A.2d 267 (1974). A litigant must do two things in order to preserve an issue. First, he must make a timely,, specific objection at trial and, second, he must raise the issue on post-trial motion. Commonwealth v. Keysock, 236 Pa. Superior Ct. 474, 345 A.2d 767 (1975).

Before turning our attention to the remaining issues, we take note that a motion for a new trial is addressed to the discretion of the trial court, based on the circumstances of the particular ease, and the court’s action in granting or refusing such a motion will not be reversed in the absence of a manifest abuse of discretion or a clear error of law. Beyrand v. Kelly, 434 Pa. 326, 253 A.2d 269 (1969). The trial court’s discretion in this regard is not absolute but is subject to appellate review. Austin v. Ridge, 435 Pa. 1, 255 A.2d 123 (1969).

[580]*580Was the Verdict Contrary to the Evidence?

Onr examination of the extensive record in this case satisfies ns that the verdict is not against the weight of the evidence. We are in accord with the trial court’s assessment of the record relative to this issue and set forth here a portion of that assessment:

The Condemnee, Max Nobel, testified as an owner that he acquired the subject premises for $6,301.26, that no improvements were made to the subject premises except the planting of some pine trees that were not affected by the taking. The condemnation occurred approximately two years later. The owner was permitted to testify as an owner that the value of the property before the taking was $2,450,000.00. This is $2,443,698.74 more than he paid for it some two years earlier. He also testified that the value after the taking was $1,400,000.00 for a loss to him of $1,050,000.00.
Harry Whyel testified that the fair market value of the lot prior to the taking was $2,060,-000.00, the value after the taking was $1,420,-000.00, with a loss to the Condemnees in the amount of $640,000.00. Mr. Whyel is an expert in the field of mining and has had considerable experience in buying land underlaid with coal.
Robert Berish, a real estate broker who was admitted to be an expert by the Condemnees in the field of real estate, testified that at the time of the taking the real estate had a value of $15,000.00 and after the taking had a value of $11,500.00, with damages in the amount of $3,-500.00 to the Condemnees.
Albert Sesler, another real estate expert for the West Penn Power Company who was also acknowledged by the Condemnees to be an ex[581]*581pert in the field of real estate, testified that the property was valued at $16,500.00 before the taking and $13,000.00 after the taking, with damages to the owners in the amount of $3,-500.00.
There has never been such a wide divergence of opinion as to the damages in any case in condemnation heard before this Court prior to this date.
In determining the fair market value of the land prior to the taking and as affected thereby, the real issue, on which testimony was offered by both the experts for the West Penn Power Company and for the Condemnees, is to what extent coal could be mined under the transmission line and to what extent it affected the ability to economically mine the coal under the remaining land not within the area appropriated.
Russell Mechling, a mining engineer, testified that there was approximately 650,000 tons of the Sewickley seam of coal outcropping near the power line and under the area that the power line crosses, there was about one and one-half million tons of Redstone coal underlying nearly the entire 257 acre tract and approximately 1.6 million tons of Pittsburgh seam of coal underlying the entire tract.
Basically, the Condemnor’s testimony was confined solely to the proposition that if it was economically feasible to mine the coal prior to the condemnation, it was economically feasible to do so afterward.
The respective witnesses for the West Penn Power Company and the Condemnees offered contradictory opinions on this issue. It created a question of credibility which the jury resolved [582]*582in favor of the Condemnor. The jury viewed the premises, which is evidence which may be considered by them in fixing their valne. Also, they may consider the purchase price which in this case was $6,301.26, as determinative of the valne of the land on the date of the taking. Kliek vs. Department of Transportation, 20 Commonwealth Court 627 (1975).

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Bluebook (online)
388 A.2d 781, 36 Pa. Commw. 577, 1978 Pa. Commw. LEXIS 1201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nobel-v-west-penn-power-co-pacommwct-1978.