Glider v. Com., Dept. of Highways

• Decision Date: 27 June 1969
• Citation: 435 Pa. 140,255 A.2d 542
• Parties: Leon GLIDER and Claire Glider, his wife, Appellants, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF HIGHWAYS.
• Court: Pennsylvania Supreme Court

255 A.2d 542

435 Pa. 140

Leon GLIDER and Claire Glider, his wife, Appellants, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF HIGHWAYS.

Supreme Court of Pennsylvania.

June 27, 1969.

Lewis Kates, Philadelphia, for appellants.

Francis P. Cadran, Philadelphia, Alexander V. Sarcione, Asst. Atty Gen., Harrisburg, for appellee.

Before BELL C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.

OPINION

EAGEN Justice.

Leon Glider and his wife, Claire, were the owners of Philadelphia realty which was condemned by the Department of Highways of the Commonwealth of Pennsylvania for highway construction purposes. A Board of View was appointed on the petition of the condemnees. Subsequently, on application of the condemnees for the payment of estimated just compensation the Commonwealth paid them the sum of $10,500. Later the Board of View made an award to the condemnees of $12,500 plus detention damages. The condemnees filed an appeal from the award in the Court of Common Pleas. After trial the jury found in favor of the Commonwealth and awarded no damages. A motion for a new trial by the condemnees was dismissed by the court en banc and after judgment was entered on the verdict, this appeal was filed.

The condemnation involved the taking of 7866 square feet of premises consisting of 11,036 square feet which, prior to the condemnation on May 29, 1967, were improved with a five-story one hundred year old building which had been used by the appellants-condemnees as a candy factory. The premises did not abut on any street and the only access thereto was by way of a private alley used in common with four others. On January 23, 1967, some four months prior to the filing by the Commonwealth of the Declaration of Taking, the premises were badly damaged by fire. Subsequent to the fire, the condemnees never resumed the candy manufacturing business, although they claimed that some repairs were made prior to the condemnation and that the building could be repaired and restored to a condition rendering it again usable as a candy manufacturing plant. The Commonwealth contended, however, that the entire building was in such a damaged state that it was structurally unsound and unusable, and that the cost of repairing it was so economically impractical that the building would have to be demolished.

At trial, the condemnees presented expert testimony that the premises, although damaged by fire as of the date of condemnation, were structurally sound and still usable as a candy manufacturing facility and that its value for such use, including the machinery, equipment and fixtures forming part of the real estate, was $209,251. The condemnees' expert testimony concluded that that which remained after condemnation was a landlocked parcel having a value of $500. The value of $209,251 was apportioned at $157,700 for the building and $40,551 for machinery and equipment.

The condemnor's expert testimony was that the improvements, because of the fire, had no economic value or utility whatsoever and that the value of the land before the taking was $10,500 and the value of the land remaining after the taking was $500 resulting in damages of $10,000. To this was added a scrap value of $500 for the machinery and equipment making a net damage of $10,500. The Commonwealth's Machinery and equipment valuation expert testified that the scrap or salvage value of $500 was what a demolition contractor would give as a credit against what he charged for demolition of the condemned premises. The Commonwealth's Real estate valuation expert who fixed the value of the premises as land only before condemnation at $10,500 testified on direct examination that though he considered the cost of demolition he did not 'use that as a consideration because if (he) did the (condemnees) would get nothing.' Under cross-examination by counsel for condemnees he testified further on this matter as follows:

'Q. Mr. Meltzer, in your before value, you gave a price of $10,500.00, is that not correct?

'A. Yes.

'Q. What portion of that, if any did you attribute to the real estate, the building?

'A. The land, I will repeat, there was 11,037 square feet of land at ninety-five cents a square foot; that came to $10,500.00. The cost of demolishing the building would have been $11,000.00. I did not subtract that from the land value. In other words, any buyer would have had to pay $11,000.00 to knock down the building, and I felt to take that off, to recognize the building at that point, would have allowed the owner no compensation, and I felt the owner, since this was a condemnation, was entitled to compensation in spite of, let's say, the textbook approach.'

It was stipulated of record that the Commonwealth had paid the condemnees $10,500 as its estimate of just compensation in accordance with Section 407 of the Eminent Domain Code, Act of June 22, 1964 (Spec.Sess.), P.L. 84, 26 P.S. § 1--407, but the jury was unaware of this payment.

It is admitted that after the effective date of the condemnation, the condemnees, without prior permission of the Commonwealth, permitted their son to remove the machinery and equipment. The condemnees' machinery and equipment valuation expert testified that the fair market value of the removed machinery and equipment in place unaffected by the condemnation was $27,369 and that the value thereof severed from the real estate was $2,280.

The condemnees seek a new trial on the grounds that the verdict was against the evidence, was against the weight of the evidence and because of alleged errors committed by the trial judge in his rulings.

The condemnees contend that the verdict of no damages cannot stand inasmuch as the evidence presented by the Commonwealth itself, uncontroverted by any of its witnesses, shows that the damages resulting from the condemnation was $10,500. Unlike the rule followed in some other jurisdictions, the rule in Pennsylvania is that the verdict of a jury in a condemnation proceeding may be below the lowest market value testified to by the condemnor's own valuation expert. The opinion testimony of an expert valuation witness is not so far vouched for by the party calling him that he is bound thereby, if the burden of proof on the issue of damages is on the other party. Ray, to use of Miller v. Philadelphia, 344 Pa. 439, 25 A.2d 145 (1942). A jury may believe all or part or none of the testimony of any witness though it may not disregard evidence as to property values and substitute its own ideas. Morrissey v. Commonwealth Department of Highways, 424 Pa. 87, 225 A.2d 895 (1967).

In the instant case, the burden of proving damages was on the condemnees, not the condemnor. It was the prerogative of the jury to decide what evidence it would credit and what it would reject. The jury by its verdict rejected in toto the evidence as to damages presented by the condemnees. And under the rule enunciated in Ray, supra, it was not bound to accept in toto the opinion testimony as to value presented by the condemnor. Nor can it be said that the verdict of the jury was capricious or not rationally related to any evidence because the jury rejected in toto the condemnor's evidence of damages in the sum of $10,500, since the same valuation expert who testified to damages of $10,500 qualified his opinion by stating that the cost of demolishing the building which was not repairable would be $11,000, or more than the value of the land without any building. The jury therefore could accept the testimony of the Commonwealth that (1) the building was worthless and so damaged by the fire that it was a burden on the land in that its razing was necessary, (2) that the machinery, equipment and fixtures had a scrap or salvage value of only $500, and (3) that the cost of razing the building and clearing away the debris was $11,000. There was, therefore, evidence in the record to sustain a finding by the jury that as of the date of condemnation, the...