Community Housing Services, Inc. v. Pittsburgh Urban Redevelopment Authority

Concurring Opinion by

Mr. Justice Pomeroy:

Appellant was the owner of property condemned by the Urban Redevelopment Authority of Pittsburgh. Following a hearing the Board of Viewers awarded appellant $16,200.00, and appeal was taken. At trial the lower court excluded appellant’s testimony as to other allegedly comparable sales made by various sellers to the condemnor. The jury returned a verdict for the appellant in the sum of $14,000. Appellant’s motion for new trial on the grounds that the trial court had erred in excluding the evidence of comparable sales and that the resultant verdict was inadequate was refused by the court en banc. This appeal followed.

Appellant here strenuously urges, as it did below, the admissibility of evidence as to sales of comparable properties to the Authority and asserts that the exclusion of such evidence “was in large part responsible for the totally inadequate verdict in this case.” (Appellant’s brief, page 18.) I do not think that appellant has to “demonstrate that the verdict was inadequate”; rather he must show (1) that the evidence if admitted might have resulted in a larger verdict, and (2) that the evidence of allegedly comparable sales to the con*349demnor was improperly excluded. While it would have been better practice for appellant here to have made a clear offer of proof in order to show that the excluded evidence, if believed, might have raised the verdict, and to have been more explicit in this regard in the statement of question involved, this position is surely implicit in the coupling, in the new trial motion and in the argument on this appeal, of the claim of wrongful exclusion with the claim of inadequacy of verdict. I do not believe, moreover, that Granowitz v. Erie Redevelopment Authority, 432 Pa. 243, 247 A. 2d 623 (1968) is controlling. In Grano toils, the jury awarded the condemnee $12,000 more than had the Board of Viewers, and the court specifically found that the appellant had not contended, either in his motion for a new trial or on appeal, that the jury verdict was inadequate.

Finally on this phase, we are not asked to evaluate the verdict or to determine whether or not it is inadequate. The parts of the record submitted are, in my view, quite adequate for consideration of the narrow legal question raised on the appeal, viz., did the trial court err in refusing to permit testimony as to sales of comparable property to the condemnor? This can be answered without indulging in an advisory opinion. Giving the appellant the benefit of any doubts with reference to the raising of the question of inadequacy, I nevertheless think the question as to admissibility was correctly decided below.

Sales to a condemnor of properties which it could, and if necessary would, acquire by condemnation are not, in my judgment, sales on the open market between a willing seller and a willing buyer. They involve an ingredient of compulsion on the part of the seller that might make the “sales price” too low; there may be an ingredient of anxiety for speedy acquisition or some *350other factor operating in the mind of the authority which would place the “sales price” on the high side of fair market value. The fact is that the parties are not only buying and selling real estate; they are also settling a potential lawsuit, with all the elements of time, trouble, expense, and worry that would be involved. The properties may indeed be comparable, but for one reason or another the transactions may not be, and the so-called “sales price” may be higher or lower than if no condemnation were involved. To admit such testimony would be to invite side excursions into all the other related factors; such collateral matters would unduly complicate and delay the trial. For these and the other reasons contained in the opinion of the lower court, I see no reason to depart from the so-called “exclusionary rule”, which has long been the law in Pennsylvania, and represents the majority view in the United States. See Nichols on Eminent Domain (3d Ed., 1967), §§21-33; Snitzer, Pennsylvania Eminent Domain (1965), §705(1)-2.11.

Mr. Justice Jones and Mr. Justice O’Brien join in this concurring opinion.