George v. Com., Dept. of Transp.
| Citation | 650 A.2d 1217,168 Pa.Cmwlth. 517 |
| Parties | Winifred GEORGE and Milton Lloyd, Executors of the Estate of Thomas George, Jr., deceased, and George J. Allen, Executor of the Estate of Roy G. Allen, deceased, partners, trading as Lehigh Stripping Company, Appellants, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION. |
| Decision Date | 21 April 1995 |
| Court | Commonwealth Court of Pennsylvania |
Pasco L. Schiavo for appellants.
Frank M. O'Neill, Asst. Counsel, for appellee.
Before DOYLE and FRIEDMAN, JJ., and KELTON, Senior Judge.
Winifred George and Milton Lloyd, executors of the estate of Thomas George, Jr., deceased, and George J. Allen, executor of the estate of Roy G. Allen, deceased, partners, trading as Lehigh Stripping Company (Appellants), appeal from an order of the Court of Common Pleas of Schuylkill County (trial court) denying and dismissing Appellants' Motion for Post-Trial Relief in an eminent domain proceeding. We affirm.
Appellants owned 1,400.33 acres of land in Schuylkill County. On June 17, 1966, the Pennsylvania Department of Transportation (DOT) filed a Declaration of Taking condemning 128.66 acres of this property for the construction of Interstate Route 81, leaving Appellants with a residue of 1,271.67 acres of land.
In June of 1974, a Board of Viewers awarded Appellants $70,000.00 as just compensation for the condemnation. DOT appealed the award and a jury trial (Trial I) was held before the trial court. The jury awarded Appellants only $10,208.28. Appellants appealed the verdict to this court, which ordered a new trial.
In 1984, Appellants filed a Petition for Change of Venue, which the trial court denied following a hearing (Change of Venue Hearing). 1 After a second jury trial (Trial II), the trial court, on March 1, 1993, awarded Appellants $25,000.00 as just compensation. Appellants subsequently filed a Motion for Post-Trial Relief, which the trial court denied.
On appeal to this court, Appellants allege that the trial court abused its discretion or committed an error of law (1) by allowing prior testimony of Thomas George, Jr., deceased, and Harold J. Williams, deceased, to be read to the jury under section 5934 of the Judicial Code, 42 PA.C.S. § 5934, (2)2 by failing to find the award of $25,000.00 inadequate and against the weight of the evidence, and (3) by denying Appellants' request for a change of venue.
Section 5934 of the Judicial Code, 42 Pa.C.S. § 5934 (emphasis added), states in pertinent part:
Whenever any person has been examined as a witness in any civil matter before any tribunal of this Commonwealth ..., if such witness afterwards dies, ..., and if the party, against whom notes of the testimony of such witness are offered, had actual or constructive notice of the examination and an opportunity to be present and examine or cross-examine, properly proven notes of the examination of such witness shall be competent evidence in any civil issue which may exist at the time of his examination, or which may be afterwards formed between the same parties and involving the same subject-matter as that upon which such witness was so examined.
Based on this language, Appellants assert that the trial court should not have allowed the jury to hear the prior testimony of Appellants George and Williams.
Appellants contend that the subject matter upon which Appellant George was examined at the Change of Venue Hearing, i.e., local prejudice against coal mine operators, was not the matter in dispute before the trial court at Trial II, where the issue was the amount of just compensation for the condemnation of Appellants' property. We disagree.
Section 5934 of the Judicial Code is a codification of the "former testimony" exception to the hearsay rule as applied in civil cases. In order to qualify for the exception, former testimony must be offered as evidence pertinent to an issue involving the same subject matter as that upon which the witness was previously examined. 3 42 Pa.C.S. § 5934.
In this case, the issue before the trial court at the Change of Venue Hearing was whether Appellants could receive just compensation for the condemnation of their land before a jury of Schuylkill County residents. The issue before the trial court at Trial II was the amount Appellants should receive as just compensation for the condemnation of their land. Clearly, these issues involve the same subject matter, i.e., just compensation for the condemnation of Appellants' land. 4 Thus, the trial court did not abuse its discretion by admitting Appellant George's testimony under 42 Pa.C.S. § 5934. 5
Appellants also argue that the trial court abused its discretion or committed an error of law by allowing prior testimony of Harold J. Williams, deceased, to be read to the jury under 42 Pa.C.S. § 5934. Williams was a valuation expert for DOT at Trial I who estimated Appellants' damages at $7,700.00. There is no question that Williams' former testimony is admissible under 42 Pa.C.S. § 5934 because there is an identity of issues, i.e., the amount of just compensation. Nevertheless, Appellants suggest that his testimony should not have been admitted because the probative value of Williams' former testimony with respect to just compensation is substantially outweighed by the danger of unfair prejudice, confusion of issues or misleading the jury. Milan v. Department of Transportation, 153 Pa.Commonwealth Ct. 276, 620 A.2d 721 (1993), appeal denied, 535 Pa. 650, 633 A.2d 154 (1993) (Friedman, J., dissenting).
In this regard, Appellants argue that Williams testified erroneously that railroad right of ways on Appellants' property prevented Appellants from crossing their land which, if true, would decrease the value of the property. (N.T. at 396-97.) In addition, Appellants allege that Williams erroneously based his valuation solely upon the "present use" of Appellants' land at the time of condemnation, not the "highest and best use" as prescribed by statute. These errors, claim Appellants, were severely prejudicial. Again, we disagree.
With respect to Williams' testimony that the railroad right of way created a barrier on Appellants' land, we note that counsel for Appellants objected to that testimony at the time of trial and, immediately thereafter, the judge explained to the jury in a manner that satisfied Appellants' counsel that Williams was in error. 6 Thus, the danger of unfair prejudice from Williams' erroneous testimony was removed.
Concerning the highest and best use of Appellants' property, Williams testified as follows:
Q And then, in your opinion, there is no highest and best use of any portion of this property other than huckleberry picking, hunting and fishing?
A Until I see development, yes, sir.
(N.T. at 435.)
Q But unless you actually see development you cannot determine as the highest and best use anything other than what is actually existing at that time. Is that correct?
A In my opinion, that's correct.
(N.T. at 436.) We interpret Williams' testimony to mean that the "highest and best use" of Appellants' property in 1966 was its "present use," i.e., recreation. Thus, we cannot say that Williams applied the wrong standard in arriving at his valuation of Appellants' property.
While we agree that the probative value of Williams' testimony is diminished by his error with respect to the railroad right of ways, we believe that the trial court's instruction to the jury removed the danger of unfair prejudice to Appellants in that regard. We conclude, then, that the trial court did not clearly abuse its discretion by admitting into evidence the former testimony of Appellant George and Williams.
Appellants next argue that the trial court abused its discretion or committed an error of law by failing to find the award of $25,000.00 inadequate and against the weight of the evidence. 7 Appellants point out that (1) the Board of Viewers had awarded $70,000.00 in damages; (2) Appellants' experts and an owner testified that just compensation should be anywhere from $450,000.00 to $700,000.00; (3) Williams' expert testimony was flawed; (4) the testimony of Richard F. Higgins, another DOT valuation expert, was contradictory; and (5) Appellants sold the residue for $300,000.00 seven years after the condemnation.
Section 602(a) of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-602(a), defines the measure of damages as follows:
(a) Just compensation shall consist of the difference between the fair market value of the condemnee's entire property interest immediately before the condemnation and as unaffected thereby and the fair market value of his property interest remaining immediately after such condemnation and as affected thereby, and such other damages as are provided in this code.
Fair market value is the price that would be agreed to by a willing and informed seller and buyer, taking into consideration the present use of the property, its highest and best reasonably available use, and other relevant factors. Section 603 of the Code, 26 P.S. § 1-603.
Appellants first argue that the jury award is against the weight of the evidence because the Board of Viewers awarded Appellants $70,000.00 in damages. 8 When a new trial is requested, the trial court may consider a large difference between the Board of Viewers' award and the jury verdict; however, it is not a controlling factor absent other evidence that the verdict is inadequate. Redevelopment Authority of the County of Washington v. Faith United Presbyterian Church, 7 Pa.Commonwealth Ct. 490, 298 A.2d 614 (1972).
Here, while there is some difference between the Board of Viewers award of $70,000.00 and the jury award of $25,000.00, the difference is not nearly as great as that between the Board of Viewers' award and the $450,000.00 to $700,000.00 in damages set by Appellants'...
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- George v. Com., Dept. of Transp.