Morrissey v. Com., Dept. of Highways

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtBefore BELL; JONES
Citation440 Pa. 71,269 A.2d 866
Decision Date09 October 1970
PartiesJames D. MORRISSEY and Mary F. Morrissey, his wife, and James D. Morrissey, Inc., a corporation v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF HIGHWAYS, Appellant.

Page 866

269 A.2d 866
440 Pa. 71
James D. MORRISSEY and Mary F. Morrissey, his wife, and
James D. Morrissey, Inc., a corporation
v.
COMMONWEALTH of Pennsylvania, DEPARTMENT OF HIGHWAYS, Appellant.
Supreme Court of Pennsylvania.
Oct. 9, 1970.

[440 Pa. 73]

Page 867

Alexander V. Sarcione, Asst. Atty. Gen., Robert W. Cunliffe, Deputy Atty. Gen., William C. Sennett, Atty. Gen., Harrisburg, for appellant.

Louis F. Floge, Michael Sklaroff, Philadelphia, Schnader, Harrison, Segal & Lewis, Philadelphia, of counsel, for appellees James D. Morrissey, et ux.

[440 Pa. 72] Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS, and POMEROY, JJ.

[440 Pa. 73] OPINION

JONES, Justice.

This is an appeal in an eminent domain proceeding from an order dismissing the Commonwealth's motion for a new trial, sustaining the verdict of the jury and entering judgment thereon. The underlying facts in the condemnation case have already been discussed at length in our earlier opinion in Morrissey v. Dep't of Hwys., 424 Pa. 87, 89--90, 225 A.2d 895, 896 (1967), and need not be reiterated. In Morrissey, we reversed the entry of judgment on the verdict and mandated a new trial. Essentially we are concerned with the sequence of events that have transpired in the proceedings below following our ruling that now lead to this second appeal.

In accordance with the opinion in Morrissey, a new trial was held, resulting in a jury verdict on October 19, 1967, for condemnees in the amount of $99,400, consisting of severance damages in the sum of $70,000 plus $29,400 detention damages. A second judge heard the Commonwealth's argument in support of its motion for a new trial on August 8, 1968, and the aforementioned order denying the motion was entered on November 7, 1969. This appeal followed.

Several reasons are advanced by the Commonwealth as justification for a new trial: (1) the verdict was [440 Pa. 74] against the evidence, the weight of the evidence and the law; (2) the verdict was excessive; (3) the trial judge erred in denying two of the Commonwealth's points for charge; (4) the trial judge erred in his failure to withdraw a juror and declare a mistrial after it was discovered that the forelady of the jury had a conversation with one of appellees' witnesses; and (5) the trial judge erred in not correcting his charge sufficiently so as to avoid confusion in respect to a view being evidentiary. The additional facts necessary for a complete understanding of these issues will be developed herein.

In respect to the first contention, the Commonwealth does not deny that the appellees-condemnees are entitled to a verdict in their favor since the only matter for the jury to determine was the amount of damages. Sterner v. Commonwealth, 325 Pa. 326, 190 A. 891 (1937). Insofar as it is argued the extent of damages was exaggerated, I.e., excessive, and that the charge misled the jury into a consideration of improper items of damages, these issues will be discussed Infra. However, it is also suggested that the charge did not give a 'balanced review of the testimony.' Besides our belief that the charge was fair and impartial, we note that, despite the trial judge's request for points of correction, no disagreement whatsoever was voiced by the Commonwealth to the content of the trial judge's narration of the evidence presented. As we indicated in Lobalzo v. Varoli, 422 Pa. 5, 220 A.2d 634 (1966), a new trial should not be granted based on general allegations of prejudice in the

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charge when any such prejudice could have been promptly eliminated by an indication of disagreement on the part of counsel. This contention is singularly without merit.

Secondly, we must consider whether the verdict was excessive. It must be remembered that while $99,400 [440 Pa. 75] was the jury's figure for .673 of an acre, $70,000 of that amount constituted property damages. As might be expected, the valuation opinions given by the real estate appraisers for each party were conflicting: the Commonwealth's witnesses estimated the property damages to be $23,000 and $25,000 while appellees' witnesses estimated damages of $120,000 and $137,250. 1 It is helpful to remember the amounts in the past proceedings: (1) the board of view had awarded property damages of $50,000 and detention damages of $11,700; (2) the jury in the first trial found a verdict in the amount of $28,000 plus $8,400 detention damages. Besides disparaging the operational loss occasioned appellees' business as minimal, 2 the principal support for this contention is the disparity between this sum and the amount of the first jury and the board of view as well as the opinion of the Commonwealth's experts.

We have indicated many times that the discrepancy in valuation between various experts is properly a factor for the jury's consideration. Poulos v. Commonwealth, 438 Pa. 442, 266 A.2d 100 (1970); McConn v. Com., Dep't of Hwys., 431 Pa. 574, 246 A.2d 677 (1968); Morrissey v. Dep't of Hwys., 424 Pa. 87, 225 A.2d 895 (1967); Frontage, Inc. v. Allegheny County, [440 Pa. 76] 413 Pa. 31, 195 A.2d 515 (1963); Chiorazzi v. Commonwealth, 411 Pa. 397, 400, 192 A.2d 400 (1963); Springer v. Allegheny County, 401 Pa. 557, 165 A.2d 383 (1960). Similarly, we have noted that while the board of view award is an important consideration, it is not controlling; and a new trial based solely on the disparity of amount between the board of view and the jury is not warranted. Poulos v. Commonwealth,438 Pa. 442, 266 A.2d 100 (1970); McConn v. Com., Dep't of Hwys., 431 Pa. 574, 246 A.2d 677 (1968); Shotts v. Turnpike Comm'n., 432 Pa. 83, 243 A.2d 326 (1968); Hoffman v. Commonwealth, 422 Pa. 144, 221 A.2d 315 (1966); Snyder v. Commonwealth, 412 Pa. 15, 192 A.2d 650 (1963); Chiorazzi v. Commonwealth, 411 Pa. 400, 192 A.2d 400 (1963). Finally, the difference in jury verdicts should not justify a new trial. To order a new trial as we previously did due to certain errors and now circumscribe the second jury's verdict within the confines of the first jury's amount would be quite illogical. What we said in Brown & Vaughn Dev. Co. v. Commonwealth, 393 Pa. 589, 598, 143 A.2d 815, 820 (1958), in denying a new trial on the ground of excessiveness of the verdict is...

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22 practice notes
  • Bruckshaw v. Frankford Hosp. of City of Phila.
    • United States
    • United States State Supreme Court of Pennsylvania
    • December 18, 2012
    ...court questioned the jurors in chambers with counsel and determined that the contact was innocuous); Morrissey v. Com., Dept. of Highways, 440 Pa. 71, 269 A.2d 866 (1970) (holding that while a witness's comments to a juror may warrant a mistrial, this determination depends on the trial cour......
  • Bruckshaw v. Frankford Hosp. of Phila., J-19-2012
    • United States
    • United States State Supreme Court of Pennsylvania
    • December 18, 2012
    ...court questioned the jurors in chambers with counsel and determined that the contact was innocuous); Morrissey v. Com., Dept. of Highways, 269 A.2d 866 (Pa. 1970) (holding that while a witness's comments to a juror may warrant a mistrial, this determination depends on the trial court's exer......
  • Halper v. Jewish Fam. & Children's Service, No. 2 EAP 2007.
    • United States
    • United States State Supreme Court of Pennsylvania
    • February 19, 2009
    ...allowed juries to hear relevant evidence and resolve conflicts among expert witnesses. See Morrissey v. Commonwealth, Dept. of Highways, 440 Pa. 71, 269 A.2d 866, 868 (1970); Abrams v. Philadelphia Suburban Transp. Co., 438 Pa. 115, 264 A.2d 702, 704 (1970). Only expert testimony containing......
  • Chicchi v. Southeastern Pa. Transp. Auth.
    • United States
    • Commonwealth Court of Pennsylvania
    • March 8, 1999
    ...jury is expressly and clearly instructed that the latter statement, not the earlier one, is correct. Morrissey v. Department of Highways, 440 Pa. 71, 269 A.2d 866 (1970); Dunlap v. Larkin, 342 Pa.Super. 594, 493 A.2d 750 Before giving the modified jury instruction, the trial court expressly......
  • Request a trial to view additional results
22 cases
  • Bruckshaw v. Frankford Hosp. of City of Phila.
    • United States
    • United States State Supreme Court of Pennsylvania
    • December 18, 2012
    ...court questioned the jurors in chambers with counsel and determined that the contact was innocuous); Morrissey v. Com., Dept. of Highways, 440 Pa. 71, 269 A.2d 866 (1970) (holding that while a witness's comments to a juror may warrant a mistrial, this determination depends on the trial cour......
  • Bruckshaw v. Frankford Hosp. of Phila., J-19-2012
    • United States
    • United States State Supreme Court of Pennsylvania
    • December 18, 2012
    ...court questioned the jurors in chambers with counsel and determined that the contact was innocuous); Morrissey v. Com., Dept. of Highways, 269 A.2d 866 (Pa. 1970) (holding that while a witness's comments to a juror may warrant a mistrial, this determination depends on the trial court's exer......
  • Halper v. Jewish Fam. & Children's Service, No. 2 EAP 2007.
    • United States
    • United States State Supreme Court of Pennsylvania
    • February 19, 2009
    ...allowed juries to hear relevant evidence and resolve conflicts among expert witnesses. See Morrissey v. Commonwealth, Dept. of Highways, 440 Pa. 71, 269 A.2d 866, 868 (1970); Abrams v. Philadelphia Suburban Transp. Co., 438 Pa. 115, 264 A.2d 702, 704 (1970). Only expert testimony containing......
  • Chicchi v. Southeastern Pa. Transp. Auth.
    • United States
    • Commonwealth Court of Pennsylvania
    • March 8, 1999
    ...jury is expressly and clearly instructed that the latter statement, not the earlier one, is correct. Morrissey v. Department of Highways, 440 Pa. 71, 269 A.2d 866 (1970); Dunlap v. Larkin, 342 Pa.Super. 594, 493 A.2d 750 Before giving the modified jury instruction, the trial court expressly......
  • Request a trial to view additional results

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