dissenting.
The majority holds today that because one judge determined in a single case, on the basis of a specific set of facts, that an individual coal operator could not obtain an impartial jury in Schuylkill County, another judge of the Court of Common Pleas of Schuylkill County was required to reach the same conclusion in a different case involving a different coal operator, without regard to the particular facts and *613circumstances of that case. This remarkable and wholly unjustified requirement transforms into an inflexible rule of law a question which, until today, has always been left to the sound discretion of the trial court for determination on the basis of the facts presented. I must dissent.
Appellant advances two arguments in support of his claim that the denial of a change of venue was an abuse of the trial court’s discretion. First, appellant contends that the granting of a change of venue to the Seltzer Coal Company by another judge of the Court of Common Pleas of Schuylkill County, fifteen days before the denial of a change of venue in appellant’s case, Seltzer Coal Company v. Commonwealth, Department of Transportation, 72 Sch.L.Rev. 29 (1976), required the granting of a change of venue to appellant because his situation was “virtually identical” to that of Seltzer. Second, appellant argues that the alleged inadequacy of the jury’s verdict must have been the result of juror prejudice. In my view, neither of these contentions has merit.
In Seltzer, which also involved the taking of property by eminent domain for the construction of Interstate Route 81, the original trial in 1970 had ended in a mistrial because of prejudicial pretrial publicity. The jury reached a verdict in the second trial, but plaintiff coal company’s motion for a new trial was granted. The plaintiff then sought a change of venue for the third trial, which the court granted for a combination of reasons. First, extensive pretrial publicity had been directed specifically against the Seltzer Coal Company at the time the case was originally listed for trial, and the court found the plaintiff’s fear of a recurrence of such prejudicial publicity “not completely unjustified.” Second, in the court’s view, culm banks were generally perceived by Schuylkill County residents as “ecological and economic eyesores,” and, according to the court, this perception “would have an adverse effect on a trial where the final verdict substantially depends on the jury’s monetary evaluation of such refuse or culm banks.” Third, the court felt that the alleged “general bias against coal mine owners and opera*614tors,” “viewed in light of the culm. . . issue” “reinforces the advisability of a change of venue.” Finally, the court hoped that the granting of a change of venue would help to bring a protracted piece of litigation to a swift conclusion.
Unlike the plaintiff in Seltzer, appellant has not alleged that any pretrial publicity was ever directed at him. Moreover, as appellant’s plans for his property included an airport, a golf course, and a race track, it is far from certain that appellant faced, in his trial, the same alleged “general bias against coal mine owners and operators” to which the Seltzer Coal Company was arguably subject in the third trial of its claim.
The only clear similarity between Seltzer and appellant’s case is that both Seltzer and appellant sought compensation for the taking of culm banks. However, appellant’s argument that the alleged inadequacy of the jury’s verdict was the result of the jury’s aversion to culm banks is belied by appellant’s own admission that appellant’s trial counsel introduced “no evidence ... at trial with regard to the coal within the culm banks, its quality and value based on actual tests,” and instructed “the experts to exclude from their valuations the value of culm.” (Brief for Appellant at 11, 41). In light of this voluntary, if ill-advised, trial strategy, it is not surprising that appellant’s brief in support of post-verdict motions relegates the change of venue issue to a postscript and proceeds instead on a theory of juror confusion, contending that “the case was and is a long and difficult case and was too much so for the jury to understand,” and that “the award of the jury conclusively shows that the jury just did not understand the nature and extend [sic] of the plaintiff’s damages. . . . ”
Because the trial court was by no means presented with “the same set of facts” as existed in the Seltzer case, the majority’s conclusion that the trial court should have relied upon the Seltzer decision as “established precedent” is manifestly incorrect. The jury’s verdict in this case was above the valuation of the Commonwealth's expert and clearly based on competent and credible evidence. Appellant has *615failed to show either that the trial court abused its discretion in denying appellant’s motion for a change of venue or that the verdict was the result of juror bias. In the circumstances, the order of the Commonwealth Court affirming the denial of appellant’s motion for a new trial should be affirmed.
FLAHERTY, J., joins in this dissenting opinion.