Berger v. Public Parking Authority of Pittsburgh

Dissenting Opinion by

Mb. Justice Jones:

The decision in this case is bound to produce grave injustices to owners of private property in the ascertainment of damages due them for the talcing of their properties under eminent domain. The majority opinion repudiates the well-established and long-respected rule that in an action for damages for the appropriation of private property for public use evidence of what the owner paid for the property or what he was willing at an earlier time to sell it for is not admissible to affect the value of the property at the time of the taking. So far as such evidence has been deemed admissible, it has been for another purpose and, then, *30only in exceptional and rare instances as we shall hereinafter see.

The majority, however, state that “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” and cite in support of that statement four cases, viz., East Brandywine and Waynesburg Railroad Co. v. Ranck, 78 Pa. 454; Lutz v. Allegheny County, 327 Pa. 587, 195 A. 1; Rea v. Pittsburg & Connellsville Railroad Company, 229 Pa. 106, 78 A. 73; and Greenfield v. Philadelphia, 282 Pa. 344, 127 A. 768.

The expression in the Luts case, supra, relied on by the majority was a palpable dictum, as will appear, and the Brandywine case was later significantly limited. The Rea and Greenfield cases are exceptions to the general rule and do not support the proposition which the majority opinion lays down. In fact, it had been my understanding and belief that we had appropriately isolated those cases to their intended limited sphere when we lately reviewed them in our unanimous opinion in Berkley v. Jeannette, 373 Pa. 376, 379-381, 96 A. 2d 118. But, now, by a divided court with a majority of one, the exceptions are again dragged forth to support a general rule for which they are not authority. Thus, our pronouncement in the Berkley case that “Introduction of the purchase price is not permitted ... in order to influence, by comparison, the jury’s determination of the property’s value at the time of the condemnation” is summarily overruled although as recently as Avins v. Commonwealth, 379 Pa. 202, 108 A. 2d 788, we said that in the Berkley case “we indicated the circumstances under which the claimants’ deed for the property involved in a condemnation proceeding may be admitted in evidence or *31inquired into at a trial of the issue as to the amount of the damages suffered.”

The Brandywine case, supra, decided in 1875, did hold that the owner’s offer of his property for sale “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.” That case was thereafter cited once by this court (168 Pa. 27) on another point, not here pertinent, and, again, in Houston v. Western Washington Railroad Company, 204 Pa. 321, 325, 54 A. 166 (1903), for its holding as above set forth. The Houston case, however, has never been cited in any decision by either of our appellate courts. The Brandywine case was also cited once by the Superior Court in Orr v. Carnegie Natural Gas Company, 2 Pa. Superior Ct. 401, 410 (1896), with respect to its statement that an owner’s declarations against interest respecting the value of his land are admissible in evidence against him. But, the rule of the Brandywine case was deliberately and considerably restricted by this court in the Rea case, supra, in 1910 where it was said with specific reference to the Brandywine case that “The fact that the plaintiff had offered to sell his farm at a certain price did not fix its value, but under the circumstances of that case we viewed it as some evidence to go to the jury . . .” (Emphasis supplied). Could a case be more exceptional than one whose ruling is expressly limited to “the circumstances of that case”? Nor is it without significance that the Brandywine case has never again been cited by this court in the forty-four years since the Rea opinion until the majority opinion in the instant dase.

The Rea case, itself, was an intentional and calculated exception to the general rule that, on the trial of an issue in a condemnation proceeding as to the value of the property at the time of its appropriation, *32the owner may not be cross-examined as to what he had paid for the property. The opinion in the Rea case makes that plain beyond cavil. In the Rea case, one of the plaintiffs testified to a valuation for the appropriated land of $1,056,000. Counsel for defendant sought to cross-examine the witness as to what his father had paid for the property just two years and nine months before the condemnation and also sought “to show that there was no such increase in the market value of the property between June, 1900, and March, 1903, as would be indicated by the price paid for the property in June, 1900, and the estimate now given by the witness of its market value in March, 1903.” The offers were objected to “as not cross-examination, immaterial, irrelevant and incompetent”; and the objection was sustained. “The defendant made practically the same offer in its case in chief.” The price paid for the Rea property, as shown by the deed in evidence, which was limited to proving the grantee’s title, was $140,000. The jury returned a verdict for the plaintiffs for $775,133.33 which the parties agreed was composed of $616,000 principal and $159,133.33 compensation for delay in payment.

On appeal, the rulings on the offers, as above stated, were assigned for error. Mr. Justice Moschzisker said for a unanimous court that “The offers as a whole were properly refused. They contain too many points collateral to the main one sought to be proved, and the proffered evidence was not part of the defendant’s case in chief.” The foregoing ruling obviously embraced the offer to cross-examine the witness as to what the grantee had paid for the property. However, the learned Justice immediately went on to say, — “But after serious consideration we have reached the conclusion that under the peculiar facts of this case the question as to the purchase price of the property in *33June, 1900, was proper cross-examination and should have been allowed” (Emphasis supplied). Again, could the exceptional status of the decision have been more clearly indicated?

Counsel in the Rea case were among the ablest of the leading lawyers of Allegheny County at that time. If defendant’s counsel had a decision holding that, ordinarily, cross-examination as to what the condemnee had paid for the appropriated property was admissible on the question of damages, would they not have immediately advanced it? And, if there were such a rule, would not Mr. Justice Moschziskek, who was widely recognized as extremely well versed in the rules of law and evidence, have at once directly held that the proffered cross-examination was proper in such cases as a matter of a condemnor’s right in general instead of tying the decision to “the peculiar facts of this case”? And, what were “the peculiar facts”? The fact that the plaintiff witness was claiming a value of $1,056,000 for the land alone and the further fact that his ancestor had paid only $140,000 for both the land and buildings only two years and nine months before. Among the reasons given by Mr. Justice Moschzisker for allowing the cross-examination as to what the grantee had paid for the property was “the disparity between the price paid and the value claimed”.

Furthermore, whether such cross-examination is proper in a given instance is always a question for the trial judge to resolve in the exercise of his discretion. As was further said in the Rea case, supra (p. 120),— “under the circumstances of this case, while the testimony sought to be elicited by the question propounded to the claimant concerning the price paid for the land would not fix the value of the property, it would be some evidence to be considered in weighing his opinion as to its value .... Where such testimony is of*34fered the question of its acceptance or rejection will necessarily depend upon the circumstances in each particular case, the disparity between the price paid and and the value claimed, the length of time between the sale and the appropriation, and other elements which may present themselves tending to show the worth of the testimony as evidence affecting the importance, and throwing light upon the accuracy and good faith, of the opinion expressed by the witness. Therefore the question will always he one for the exercise of discretion on the part of the trial judge” (Emphasis supplied) .

The decision in the Rea case has since been cited only once to justify a trial court’s having permitted the cross-examination of the owner in a condemnation proceeding concerning what he had paid for his property. That was in Greenfield v. Philadelphia, supra. The Greenfield case is truly sui generis. There, the condemnation was not of an entire property to which the purchase price as a whole bore relation. The appropriation embraced no more than a strip 5 feet in width across the frontage on Chestnut Street of a plot of ground situate at the southwest corner of Chestnut and 15th Streets in Philadelphia. The lot fronted 79.2 feet on Chestnut Street and ran back, preserving an even width throughout, for a distance of 142.08 feet to Ionic Street. The lot had erected upon it a then obsolete hotel. Greenfield had acquired this property and a smaller lot directly across Ionic Street by deed dated March 6, 1922, in pursuance of his agreement of purchase of December preceding. The total consideration for the two properties was $1,887,500 of which, according to the purchaser, $1,762,500 represented the purchase price of the Chestnut Street property. The existing structures on that property were razed by the new owner who, on January 2, 1923, obtained a per*35mit to construct a twenty-story building on the Chestnut Street lot. However, because of an ordinance of the City of Philadelphia of March 31, 1884, which widened Chestnut Street from 50 to 60 feet, the owner was obliged to keep his new building back 5 feet from the old Chestnut Street building line.

Deeming the City’s appropriation of the 5-foot strip to have taken place on January 2, 1923, the date of the issuance of the building permit for the new structure — an idea, incidentally, which the City Solicitor appears also to have entertained — Mr. Greenfield instituted a viewers proceeding for the assessment and award of damages allegedly suffered by him through the City’s effectuated appropriation of the 5-foot strip within the 60-foot street width laid out by the ordinance of 1884. The viewers awarded the claimant $40,158.24, and the City appealed to the Court of Common Pleas. At the trial of the issue in the Court of Common Pleas the valuations for the property immediately before and immediately after the condemnation, as testified to by the experts on both sides (on the assumption that the date of the taking was January 2, 1923), had no identifiable significance to the damage, if any, due to the widening of the Chestnut Street sidewalk by 5 feet in 1923. In the course of the trial, the court permitted the City to cross-examine the owner relative to what he had paid for the Chestnut Street property upon taking title thereto just nine months before. The owner’s real estate experts variously testified to a valuation for the property, minus the 5-foot strip, as of January 2, 1923, from, respectively, $120,000 to $780,000 more than he had paid for it. The City’s experts testified that the property (especially for a tall office building use) had been benefited more than it had lost by the reduction in area occasioned by the widening of the Chestnut Street sidewalk by 5 feet and that, conse*36quently, the owner had not been damaged. The jury returned a verdict for the defendant City on which judgment was entered.

The owner appealed and assigned for error, inter alia, the trial court’s having permitted the defendant to cross-examine him with respect to what he had paid for the property. This court affirmed, citing Rea v. Pittsburg & Connellsville Railroad Company, supra. The fact of the matter is that the Rea case is in no sense analogous. There were no “peculiar facts” in the Greenfield case as there were in the Rea case justifying such cross-examination. In short, there was no patent “disparity between the price paid and the value claimed”. Moreover, in the Rea case, the whole of the property to which the purchase price related was taken whereas, in the Greenfield case, the 5-foot strip appropriated was but three and a half per cent of the area of the whole lot to which the purchase price applied. Nevertheless, the Rea case was cited to justify the cross-examination which, presumably, produced the verdict for the defendant. Thus, a rule expressly intended for application only in exceptional circumstances was applied to a case without exceptional circumstances. If Mr. Greenfield was damaged by an appropriation of the front 5 feet of his Chestnut Street lot for a public improvement, he had a constitutional right to be paid for it. On that basis, the permitted cross-examination was harmful error. However,- it is not clear that the plaintiff had a claim for damages. Cf. Berkley v. Jeannette, supra. He had bought, with knowledge that,, by virtue of the 1881 ordinance, he could not erect a new structure on the front 5 feet of his lot. That inhibition was undoubtedly reflected in a reduced purchase price.

The Greenfield case has since been cited twice in support of the proposition that, in a condemnation pro*37ceeding, tlie owner may be asked on cross-examination what he paid for the property if the time of the purchase is not too remote: see Goodman v. City of Bethlehem, 323 Pa. 58, 69, 185 A. 719 (1936), and Lutz v. Allegheny County, 327 Pa. 587, 590, 195 A. 1 (1937). In the Goodman case, the condemnor was denied the right so to cross-examine the owner who had purchased the property about a year before the taking. On appeal, this court affirmed the ruling in an opinion by Mr. Justice Steen who said that, under the facts of that case (viz., an exchange of properties), the proposed cross-examination would have “necessitated an investigation into the value of these other properties which would undoubtedly have been confusing to the jury.” In the Luts case there was actually no attempt to cross-examine the owner as to what he had paid for the 78-acre farm of himself and wife which the county condemned for a public purpose. The nearest counsel for the county came to inquiring into the purchase price was when the husband, who had testified to a value for the buildings on the farm in excess of §11,000, was asked whether that was not more than he had paid for both land and buildings seven years before. On appeal to this court the question was held to have been harmless as the price which the husband had paid for the farm had come out in the plaintiffs’ case through one of their own witnesses. This court went on, however, by way of a pure gratuity, to add that “Moreover, plaintiff could have been asked on cross-examination the direct question as to what he had paid for the property [citing] Greenfield v. Phila., 282 Pa. 344, 127 A. 768.” Thus, what had begun as a very restricted rule in the Ilea case became, with only one case intervening (viz., Greenfield v. Philadelphia), a general rule by way of a dictum in the Luts case. And, while it is of no present moment, a reading of the Luts case will con*38vince that it abundantly supplied the “peculiar facts” necessary to make the rule of the Rea case applicable.

Until the present decision there has been no general rule in this State permitting the cross-examination of the owner in a condemnation proceeding as to the price he had paid for the appropriated property. Whether the given case is exceptional, that is, presents the “peculiar facts” which make cross-examination of an owner as to what he paid for the condemned property proper, is, as Mr. Justice Moschzisker said in the Rea case, “always . . . one for the exercise of discretion on the part of the trial judge.” But, in addition to that, whether the particular purchase or sale is too remote to be of any evidentiary value is, as the majority opinion concedes, also a matter calling for an exercise of the trial court’s discretion.

The evident fallacy in the majority’s review of the trial court’s exercise of its discretion in the instant case lies in its misconception that remoteness of evidence is to be determined exclusively on the basis of an arbitrary time relationship. Such is not the intent of the rule. In an opinion for the Court of Appeals of New York, in which Judge Cardozo concurred, it was said that “Remoteness, [of evidence] . . . does not necessarily result from mere lapse of time, which is not necessarily an element of it. Its essence is such a want of open and visible connection between the evidentiary and the principal facts that, all things considered, the former are not worthy or safe to be admitted in proof of the latter. . . . The question of remoteness, to be decided in the first instance by the trial judge, as already stated, must depend upon all the considerations, including time, the character of the evidence and all the surrounding circumstances which in his opinion ought to have a bearing upon its. worthiness to be brought into the. consideration and. deter*39mination of the matter in contention”: People v. Thompson, 212 N. Y. 249, 254, 255, 106 N.E. 78. See also State v. Kelly, 77 Conn. 266, 269, 58 A. 705, where, to similar effect, the Supreme Court of Connecticut said that “Remoteness as applied to evidence is a term which has regard for other factors than mere lapse of time, even where it is a factor, as it often is not.” That being so, the question of remoteness is, perforce, one for the trial judge to determine initially in the exercise of a broad discretion in the conduct and course of the trial. Consequently, unless trials are to become fleeting and ineffectual episodes, an exercise of judicial trial discretion is not to be rejected or disturbed on appeal “save for manifest abuse”: Thompson v. American Steel & Wire Company, 317 Pa. 7, 11, 175 A. 541. See, also, Commonwealth v. Dress, 354 Pa. 411, 413-414, 47 A. 2d 197; Ferreira v. Wilson Borough, 344 Pa. 567, 574-575, 26 A. 2d 342; and Kaplan v. Loev, 327 Pa. 465, 469-470, 194 A. 653. And, in the present instance, there was no such abuse oí discretion, as a brief review of the factual situation will readily reveal.

On June 27, 1946, John Berger, the husband-plaintiff, purchased the property in question which was located on the Boulevard of the Allies in the downtown section of Pittsburgh popularly known as the “Golden Triangle”. About a year later, viz., on July 19, 1947, at a time when foreclosure of a defaulted mortgage on the property was threatened, Berger contracted to sell the property to one Speer for a consideration of $36,-000. The proposed sale was never consummated, however, due to the inability of the buyer to finance his purchase. Thereafter, title to the property became vested in Berger and his wife as tenants by the entire-ties. On February 28, 1951, the Berger property was one of a number of properties condemned by the Pub-*40lie Parking Authority of Pittsburgh. Meanwhile, unusually rapid and unprecedentedly extensive building activity in Pittsburgh served to enhance the value of real estate in the “Golden Triangle”. The land in that area available for private uses (business and otherwise) had become more and more limited due to the physical constrictions of the section imposed by two converging rivers and a topographical barrier from one river to the other back some distance from the confluence. The natural relative scarcity of privately usable property within the particular area was still further intensified by increased appropriations of land for public uses. Indeed, the testimony of the Parking Authority’s own real estate witnesses fully confirmed the sudden and continuing increase in the value of real estate in downtown Pittsburgh.

The Board of Viewers awarded the Bergers $54,-580 as damages for their property. Prom that award, both the property owners and the Parking Authority appealed to the Court of Common Pleas. At the ensuing jury trial, the court refused to permit the defendant either to cross-examine Berger with reference to the Berger-Speer contract of 1947 or to allow independent introduction of the contract on the ground that the matter sought to be elicited was too remote. The jury returned a verdict in favor of the plaintiffs for $64,385, certainly not an unconscionable sum when you consider that there was an additional year and two months delay in payment since the viewers’ award and a witness for the defendant conceded a value of $45,000 for the property at the time of the taking.

The fact of the rise in real estate values in the “Golden Triangle” between 1947 and 1951 having been established, it could not properly be ignored by the trial judge in passing upon the question of the remoteness of the Berger-Speer contract of 1947 in relation. *41to the issue on trial, viz., the market value of the condemned property in 1951. The fact of the matter is that the remoteness of the evidence stemmed not from lapse of time but from the pronounced intervening conditions which had greatly increased land values. Such change well justified the trial judge’s exercise of his discretion when he excluded as irrelevant and immaterial, because of remoteness, the price at which Berger would have sold the property nearly four years before the taking. Yet, the majority opinion, on the basis of lapse of time alone, convicts the trial court of error.

Remoteness of evidence, it needs be repeated, is a matter within the exercise of the trial court’s sound discretion. The language of Mr. Justice Linn in Thompson v. American Steel & Wire Company, supra, at p. 11 has peculiar significance here, — “A trial judge is necessarily vested with adequate power to control the course of the trial, limited only by statute or constitutional requirements .... He is constantly faced with questions on evidence in their special relation to the issue to be tried. He must deal with such questions in the light of the purposes of the ultimate inquiry and does so in the exercise of what is known as judicial discretion. He should see that nothing relevant is excluded, so long as its admission will not unduly distract the attention of the jury from the main inquiry, by first requiring the ascertainment of an unnecessary quantity of subordinate facts from which the main inferences would ultimately be made. His conclusion or decision on such points will not be interfered with on appeal save for manifest abuse of power. He must, therefore, determine in the first instance whether evidence which, though logically relevant on the ultimate issue, may nevertheless be excluded, because its general effect on the trial will be to confuse *42the issue by distracting the attention of the jury from the primary to collateral issues . . .

It is little less than appalling to contemplate the Pandora’s Box of trial ills which the current decision will unlid. Proofs of countervailing collateral matter will follow the introduction of collateral matter; confusion of the issue on trial will be worse confounded; and litigation over damages for land taken by condemnation will become truly interminable. The very type of evidence which was specifically ruled out in the Rea case, supra, as containing “too many points collateral to the main one” will now be relevant and material.

Finally, the majority opinion states that “The cross-examination sought and the evidence offered by the Authority was particularly allowable, competent and relevant in the present case” for the purpose of impeaching the credibility of the testimony of one of the expert witnesses produced by the owners. For such purpose, the evidence would manifestly be collateral. Accordingly, the trial judge cannot be justly held to have committed reversible exror by excluding it. The exclusion of collateral matter is so much within the discretion of a trial court as, virtually, to be unreviewable on appeal save for what clearly amounts to palpable error. Prudent and experienced trial judges are ever cautious not to permit, under the guise of impeaching a witness’s credibility, cross-examination as to collateral matter which, of itself, may have a direct bearing on the issue being tried.

I would affirm the judgment for the plaintiffs.

Mr. Justice Allen M. Stearne joins in this dissenting opinion. Mr. Justice Musmanno dissents.