Berger v. Public Parking Authority of Pittsburgh

Decision Date29 November 1954
PartiesJohn N. BERGER and Lucille M. Berger v. PUBLIC PARKING AUTHORITY OF PITTSBURGH, Appellant.
CourtPennsylvania Supreme Court

Appeals from award of Board of Viewers in condemnation proceeding instituted by public parking authority. The Court of Common Pleas, Allegheny County, Nos. 2149, 2211, April term, 1952, Henry X. O'Brien, J., entered judgment for landowners in amount exceeding board's award, and the authority appealed. The Supreme Court, Nos. 179, 180, March term, 1954, Bell, J., reversed the judgment for new trial.

Reversed and new trial granted.

Jones Stearne, and Musmanno, JJ., dissented.

Ella Graubart, Patterson, Crawford, Arensberg & Dunn Pittsburgh, for appellant.

James P. McArdle, Pittsburgh, for appellee.

Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO, and ARNOLD, JJ.

BELL Justice.

On February 28, 1951, the Public Parking Authority of Pittsburgh condemned the property of John N. Berger and his wife, known as premises 411-413 Boulevard of the Allies. The property consisted of a lot extending 40 feet on the Boulevard and 20 feet deep, with a three story building on it. The building, originally a residence of Swiss chalet design, had been converted into an office building.

Berger purchased the property on June 27, 1946. A year later, on July 19, 1947, he entered into a written agreement to sell the property to Edison Speer for $36,000 . The sale fell through in November, 1947, and the down payment of $2,000 was forfeited. Thereafter, on December 11, 1947, Berger transferred the property to the name of himself and his wife, as tenants by the entireties. At the time of the condemnation the premises were rented for $350 a month. The Board of Viewers awarded $54,560 for the fee simple to the owners of the building (which included detention money to February 1, 1952), and $1,000 to the lessee. Appeals were taken by the Parking Authority and by the owners.

At the trial in the Court of Common Pleas the jury returned a verdict in favor of the owners in the sum of $64,385 (which included detention money at the rate of 4% to April 9, 1953), but nothing for the lessee, although the Court had instructed the jury to return a verdict of $500 for the lessee's removal costs.

The Authority's motion for a new trial was refused, whereupon the Authority appealed.

On behalf of the Authority, Louis Monteverde, a real estate expert, valued the property as of the date of condemnation at $42,500, and Robert MacDowell, a real estate expert, valued it at $45,000. On behalf of the owners, West Brown, a real estate expert, valued the property at $75,000 and Thomas McCaffrey, a real estate expert, valued the property at $72,000.

Counsel for the Authority attempted to cross-examine the owner of the property, Mr. Berger, and to examine the purchaser of the property, Mr. Speer, concerning the written agreement of sale dated July 19, 1947 (the settlement date of which was September 1, 1947, later extended to October 31, 1947) for $36,000. The trial Judge refused to permit this cross-examination or examination, and also excluded the aforesaid agreement of sale, on the ground, inter alia, that it was too remote, namely, three years and four months before the condemnation.

Generally speaking, an owner of property may be asked what he paid for the property and similarly the price at which he offered to sell the property, if the purchase or sale was not too remote. East Brandywine & Waynesburg R. Co. v. Ranck, 78 Pa. 454; Lutz v. Allegheny County, 327 Pa. 587, 590, 195 A. 1; Rea v. Pittsburg & Connellsville Railroad Co., 229 Pa. 106, 78 A. 73; Greenfield v. City of Philadelphia, 282 Pa. 344, 127 A. 768.

In Lutz v. Allegheny County, 327 Pa. at page 590, 195 A. at page 2; supra, where 78 acres of farm land was condemned for an airport, this Court held that the husband plaintiff could properly be croos-examined as to the cost of the property which he had bought 7 years before the condemnation, and said: ‘ * * * plaintiff could have been asked on cross-examination the direct question as to what he had paid for the property . Greenfield v. City of Philadelphia, 282 Pa. 344, 127 A. 768.’

In Greenfield v. City of Philadelphia, 282 Pa. at page 348, 127 A. at page 769, supra, the Court permitted a plaintiff who claimed damages for the taking of his property, to be cross-examined as to the price he paid for it, even though he did not testify on direct examination as to the value of the property and even though ‘ the purchase was made more than a year before the appropriation, it being alleged that in the meanwhile the character of the neighborhood had changed and values greatly increased ’ .[1] The Court, speaking through Mr. Justice (later Chief Justice) Schaffer, said, inter alia, 282 Pa. at pages 351, 352, 127 A. at page 770:We expressly held in Rea v. Pittsburg & Connellsville R. Co., 229 Pa. 106, 115, 78 A. 73, that a party plaintiff in a proceeding of the nature which we are now considering may be asked on cross-examination the price he paid for the property, where the time of the purchase was not too remote from the time of the taking .’

The Greenfield case is on all-fours with the instant case. The Greenfield case and the Rea case once again reiterate that an owner may be asked on cross-examination the price he paid for his property, where the time of the purchase was not too remote from the time of the taking. It also disposes of and completely refutes appellee's contention that a change in the character of the neighborhood and the great increase in value of properties therein between the time of purchase and the time of the taking is a sufficient ground for entirely excluding evidence of the purchase or sale price. Of course the owner has the right to explain or deny or rebut this evidence and to offer evidence of a change in the neighborhood or an increase in values of properties therein or any other relevant fact.

In East Brandywine & Waynesburg Railroad Co. v. Ranck, 78 Pa. 454, supra, this Court reversed the Court below for excluding offers of plaintiff's declaration of what he valued his land at per acre, and what he was willing to take for it, and what he offered to sell it for two years before. Mr. Justice (later Chief Justice) Paxson, speaking for the Court, said, at pages 456, 457: ‘ The issue was as to the amount of damages caused to this particular property by the opening of the road. * * * As evidence bearing upon the value of this property, Ranck's own declarations were certainly competent when offered by the company. His offer of it at a fixed price and a sale of a portion of it were facts proper to go to the jury as constituting his estimate of its value.’

In Rea v. Pittsburg & Connellsville Railroad Co., 229 Pa. at page 116, 78 A. at page 77, supra, this Court reversed the lower Court because it refused to allow the owner to be cross-examined as to the cost of property purchased by him 2 years and 9 months prior to the condemnation, and said: ‘ * * * in Henkel v. [Wabash Pittsburg] Terminal R. Co., 213 Pa. 485, 62 A. 1085:‘ The good faith of a witness and the accuracy and extent of his knowledge may be tested by questioning him as to particular sales, to ascertain whether he knew of and considered them in forming an opinion. These inquiries go directly to the value of the opinion expressed’ ; in Gorgas v. Philadelphia, H. & P. R. Co., 215 Pa. 501, 64 A. 680:‘ The witness may be asked in cross-examination as to his knowledge of particular sales and the prices asked for property in the community for the purpose of testing his competency to testify; but such evidence in chief is clearly incompetent’ ; In Schonhardt v. Pennsylvania R. Co., 216 Pa. 224, 65 A. 543:‘ Where the witness has testified to value, his good faith and accuracy and the extent of his knowledge may be tested on cross-examination by questioning him as to particular sales of property similarly situated to ascertain whether he knew of them and considered them in forming an opinion.’ The objection to the admission of testimony of particular sales is placed upon the theory that it would lead to the investigation of ‘ collateral issues as numerous as the sales'. Pittsburg, V. & C. R. Co. v. Rose, 74 Pa. 362. It is plain that this does not apply to the admission of testimony concerning a single sale of the very property in controversy .’

The cross-examination sought and the evidence offered by the Authority was particularly allowable, competent and relevant in the present case because West Brown, a real estate expert for the owners, testified that he examined the property and made his appraisal thereof some time in 1948; that at that time his appraisal was $75,000; that land values in the ‘ Golden Triangle’, in which this property was situated, had greatly increased during the last few years, but that his appraisal was the same in 1951 as it was in 1948. We agree with the Authority that if the trial Judge had allowed it to show that Berger, the owner, was ready and willing to sell his property for $36,000 in October, 1947, Brown's 1948 valuation of $75,000 would have appeared so inflated as to make his valuation of the property in February, 1951, unreliable or unworthy of belief.[2]

Counsel for the owners vigorously contends that the aforesaid agreement of sale and any cross-examination of Berger with respect thereto were inadmissible because of remoteness of time, and because of the large increase in value of the properties situated in the ‘ Golden Triangle’ in the last few years. This latter fact goes only to the weight of the evidence and not to its admissibility; it may have great or little weight depending on the facts of the particular case, but it is clearly...

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  • Berger v. Public Parking Authority of Pittsburgh
    • United States
    • United States State Supreme Court of Pennsylvania
    • November 29, 1954
    ...109 A.2d 709 380 Pa. 19 John N. BERGER and Lucille M. Berger v. PUBLIC PARKING AUTHORITY OF PITTSBURGH, Appellant. Supreme Court of Pennsylvania. Nov. 29, 1954. [380 Pa. 20] Ella Graubart, Patterson, Crawford, Arensberg & Dunn, Pittsburgh, for appellant. James P. McArdle, Pittsburgh, for ap......

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