Berger v. Public Parking Authority of Pittsburgh

Opinion by

Mr. Justice Bell,

On February 28, 1951, the Public Parking Authority of Pittsburgh condemned the property of John N. Berger and his wife, known as premises 411-413 Boulevard of the Allies. The property consisted of a lot extending 40 feet on the Boulevard and 20 feet deep, with a three story building on it. The building, originally a residence of Swiss chalet design, had been converted into an office building.

Berger purchased the property on June 27, 1946. A year later, on July 19, 1947, he entered into a written agreement to sell the property to Edison Speer for $36,000. The sale fell through in November, 1947, and the down payment of $2,000. was forfeited. Thereafter, on December 11, 1947, Berger transferred the property to the name of himself and his wife, as tenants by the entireties. At the time of the condemnation the premises were rented for $350. a month. The Board of Viewers awarded $54,560. for the fee simple to the owners of the building (which included detention money to February 1, 1952), and $1,000. to the lessee. Appeals were taken by the Parking Authority and by the owners.

At the trial in the Court of Common Pleas the jury returned a verdict in favor of the owners in the sum of $64,385. (which included detention money at the rate of 4% to April 9, 1953), but nothing for the lessee, although the Court had instructed the jury to return a verdict of $500. for the lessee’s removal costs.

The Authority’s motion for a new trial was refused, whereupon the Authority appealed.

On behalf of the Authority, Louis Monteverde, a real estate expert, valued the property as of the date of condemnation at $42,500., and Robert Macdowell, a real estate expert, valued it at $45,000. On behalf of the owners, West Brown, a real estate expert, valued the property at $75,000. and Thomas McCaffrey, a real estate expert, valued the property at $72,000.

Counsel for the Authority attempted to cross-examine the owner of the property, Mr. Berger, and to examine the purchaser of the property, Mr. Speer, concerning the written agreement of sale dated July 19, 1947 (the settlement date of which was September 1, 1947, later extended to October 31, 1947) for $36,000. The trial Judge refused to permit this cross-examination or examination, and also excluded the aforesaid agreement of sale, on the ground, inter alia, that it was too remote, namely, three years and four months before the condemnation.

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: East Brandywine and Waynesburg R. R. Co. v. Ranck, 78 Pa. 454; Lutz v. Allegheny County, 327 Pa. 587, 590, 195 A. 1; Rea v. Pittsburg & Connellsville Railroad Co., 229 Pa. 106, 78 A. 73; Greenfield v. Philadelphia, 282 Pa. 344, 127 A. 768.

In Lutz v. Allegheny County, 327 Pa., supra, where 78 acres of farm land was condemned for an airport, this Court held that the husband-plaintiff could properly be cross-examined as to the cost of the property which he had bought 7 years before the condemnation, and said (p. 590) : “. . . plaintiff could have been ashed on cross-examination the direct question as to what he had paid for the property: Greenfield v. Phila., 282 Pa. 344, 127 A. 768.”

In Greenfield v. Phila., 282 Pa., supra, the Court permitted a plaintiff who claimed damages for the taking of his property, to be cross-examined as to the price he paid for it, even though he did not testify on direct examination as to the value of the property and even though “the purchase was made more than a year before the appropriation, it being alleged that in the meantime the character of the neighborhood had changed and vahees greatly increased."* The Court, speaking through Mr. Justice (later Chief Justice) Schaffer, said, inter alia (pp. 351, 352): “We expressly held in Rea v. Pittsburgh & Connellsville R. R. Co., 229 Pa. 106, 114, that a party plaintiff in a proceeding of the nature which we are now considering may be asked on cross-examination the price he paid for the property, where the time of the purchase was not too remote from the time of the talcing.”

The Greenfield case is on all-fours with the instant case. The Greenfield case and the Rea case once again reiterate that an owner may be asked on cross-examination the price he paid for his property, where the time of the purchase was not too remote from the time of the taking. It also disposes of and completely refutes appellee’s contention that a change in the character of the neighborhood and the great increase in value of properties therein between the time of purchase and the time of the taking is a sufficient ground for entirely excluding evidence of the purchase or sale price. Of course the owner has the right to explain or deny or rebut this evidence and to offer evidence of a change in the neighborhood or an increase in values of properties therein or any other relevant fact.

In East Brandywine & Waynesburg Railroad Co. v. Ranch, 78 Pa., supra, this Court reversed the Court below for excluding offers of plaintiff’s declaration of what he valued his land at per acre, and what he was willing to take for it, and what he offered to sell it for two years before. Mr. Justice (later Chief Justice) Paxson, speaking for the Court, said (pp. 456, 457) : “The issue was as to the amount of damages caused to this particular property by the opening of the road. . . . As evidence bearing upon the value of this property, Ranck’s own declarations were certainly competent when offered by the company. His offer of it 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.”

In Rea v. Pittsburg & Connellsville Railroad Co., 229 Pa., supra, this Court reversed the lower Court because it refused to allow the owner to be cross-examined as to the cost of property purchased by him 2 years and 9 months prior to the condemnation, and said (page 116) : . . in Henkel v. Terminal R. R. Co., 213 Pa. 485, 'The good faith of a witness and the accuracy and extent of his knowledge may be tested by questioning him as to particular sales, to ascertain whether he knew of and considered them in forming an opinion. These inquiries go directly to the value of the opinion expressed;’ in Gorgas v. Phila., H. & P. R. R. Co., 215 Pa. 501, 'The witness may be asked in cross-examination as to his knowledge of particular sales and the prices asked for property in the community for the purpose of testing his competency to testify; but such evidence in chief is clearly incompetent;’ In Schronhart v. Penna. R. R. Co., 216 Pa. 224, 'Where the witness has testified to value, his good faith and accuracy and the extent of his knowledge may be tested on cross-examination by questioning him as to particular sales of property similarly situated to ascertain whether he knew of them and considered them in forming an opinion.’ The objection to the admission of testimony of particular sales is placed upon the theory that it would lead to the investigation of 'collateral issues as numerous as the sales:’ Pittsburg, etc., R. R. Co. v. Rose, 74 Pa. 362. It is plain that this does not apply to the admission of testimony concerning a single sale of the very property in controversy.”

The cross-examination sought and the evidence offered by the Authority was particularly allowable, competent and relevant in the present case because West Brown, a real estate expert for the owners, testified that he examined the property and made his appraisal thereof some time in 1948; that at that time his appraisal was $75,000.; that land values in the “Golden Triangle”, in which this property was situated, had greatly increased during the last few years, but that his appraisal was the same in 1951 as it was in 1948. We agree with the Authority that if the trial Judge had allowed it to show that Berger, the owner, was ready and willing to sell his property for $36,000. in October, 1947, Brown’s 1948 valuation of $75,000. would have appeared so inflated as to make his valuation of the property in February, 1951, unreliable or unworthy of belief.*

Counsel for the owners vigorously contends that the aforesaid agreement of sale and any cross-examination of Berger with respect thereto were inadmissible because of remoteness of time, and because of the large increase in value of the properties situated in the “Golden Triangle” in the last few years. This latter fact goes only to the weight of the evidence and not to its admissibility; it may have great or little weight depending on the facts of the particular case, but it is clearly admissible.

The owners rely mainly on Berkley v. Jeannette, 373 Pa. 376, 96 A. 2d 118, to sustain the exclusion of the evidence and the cross-examination of the plaintiff. The facts of that case make it clearly distinguishable. In that case this Court held that a defendant could not cross-examine the husband-plaintiff as to the price he paid for a house and lot 10 months before the condemnation, and to the price he paid for the vacant lot 4 months before the condemnation, where both the testimony and the issue dealt with the value of the property as a whole at the date of the condemnation. In that case Mr. Justice Jones said (pages 381-2) : “. . . What the defendant’s counsel sought to elicit on cross-examination of the husband-plaintiff was not what the plaintiffs had paid for the property as an integrated whole* but what they had paid for each of the tracts separately at different times. The two sums added together would not have given a figure by which the witness’s opinion of the value of the properties as a whole at the time of the condemnation could have been impeached. It is not only possible, but probable, that each of the constituent lots took on an increased value upon its being merged with the other which was forthwith to be reflected in the value of the properties as a whole . . .

For these reasons we hold that the lower Court committed reversible error in excluding the 1947 agreement of sale and in refusing to permit Berger to be cross-examined as to that sale.

The Authority likewise contends that the lower Court erred in refusing to permit the defendant to put in evidence (a) the award of the Board of Viewers, and (b) the tax assessments of the property.

It was assumed by all parties concerned, as well as by the Court below, that the award of the Board of Viewers was inadmissible although no appellate Court authority was cited for this proposition. We are in accord that this is the law. This conclusion appears indirectly in Fraser v. Pittsburg, 41 Pa. Superior Ct. 103, 106, where the Court said.: “These offers of evideuce [the report of Viewers] were properly rejected by the court below, for the following reasons: (1) The report of viewers was not admissible generally, and the effect of the act of 1903 was only to make it admissible for the specific purpose in the statute designated [where benefits are assessed]; . . .”. Cf. also Philadelphia v. Conway, 257 Pa. 172, 180, 101 A. 472. Where a case is tried de novo in the Court of Common Pleas, to permit the introduction of such evidence would be similar to permitting at a second trial, evidence of the verdict of a jury on the first trial of a negligence or assumpsit case. Moreover, the award amounts merely to opinion evidence, with no opportunity to either side for cross-examination.

The duty of the tax assessors is to appraise and assess each property at its market value, and thereafter, if they desire, reduce the market value of each property by a fixed percentage applicable to all properties in the City. See: Hammermill Paper Co. v. Erie, 372 Pa. 85, 92 A. 2d 422; Algon Realty Co. Tax Assessment Appeal, 329 Pa. 321, 198 A. 49; Matson’s Appeal, 152 Pa. Superior Ct. 424, 33 A. 2d 464; Rohrbach Taw Assessment Case, 156 Pa. Superior Ct. 283, 40 A. 2d 142. The Authority contends that since it can establish both the assessment and the fixed percentage by which the market value has been reduced to obtain the assessed value, the assessment should be admissible in evidence when followed by proof which will show the actual market value of the property.

The law has long been settled that tax assessments may not be offered in evidence in a condemnation proceeding: Girard Trust Co., Trustee v. Philadelphia, 248 Pa. 179, 93 A. 947; Hanover Water Company v. Ashland Iron Co., 84 Pa. 279, 285; Mifflin Bridge Co. v. Juniata County, 144 Pa. 365, 22 A. 896; Miller v. Windsor Wader Co., 148 Pa. 429, 23 A. 1132; Marine Coal v. Pittsburgh, McKeesport & Youghiogheny R. Co., 246 Pa. 478, 92 A. 688.

The Authority has urged this Court to modify or reverse our prior decisions which exclude the introduction of a Viewer’s award and of a tax assessment, and also to permit a real cross-examination of real estate experts on the subject of sales of similar properties in the neighborhood for the purpose of determining or fixing the market value of the property in suit, irrespective of whether the experts have or have not considered or relied upon such sales. We can appreciate the feelings possessed by many counsel who are greatly restricted by the decisions of this Court in their cross-examination of expert witnesses in this class of case; especially when the testimony appears to be unbelievable and inexplicable. A typical example may be found in Lutz v. Allegheny County, 327 Pa., supra, where one expert testified to a market value of $15,500. and another expert to a market value of $129,000. for the very same property, as of the very same date. Such testimony makes the opinion evidence of real estate experts in condemnation proceedings appear at times not only unreliable but ridiculous* and the ascertainment and enforcement of justice very difficult. Nevertheless, in view of the fact that any relaxation of our settled rulings and principles, or the modification or reversal of a score of prior decisions — which for nearly a hundred years have fixed definite limitations and boundaries to the examination and cross-examination of real estate experts in this class of case,* — would open wide the door to many collateral issues, a majority of this Court believe that we should make no change in our decisions or in the principles heretofore established.

We have considered, but deem it unnecessary to discuss, all of the other contentions raised by each of the parties.

The judgment of the Court of Common Pleas is reversed and a new trial granted.

Mr. Justice Chidsey concurs in the result.

* Italics throughout, ours.

* We note parenthetically that the Authority’s real estate expert, Monteverde, who did not know of the 1947 agreement of sale between Berger and Spear, appraised the property (1) as of May 28, 1948, at $36,000., and because of the rise in real estate values in the “Golden Triangle” in the next few years, (2) as of February 28, 1951, the date of the condemnation, at $42,500.

* Italics ours.

* “. . . opinion, evidence in land damage cases is often the most conjectural, unreliable and lowest kind of evidence ever allowed in a Court of justice: Cf. Phillips’s Estate, 299 Pa. 415, 423, 149 A. 719; Snyder’s Estate, 279 Pa. 63, 74-5, 123 A. 663”: Crumrine v. Washington County Housing Authority, 376 Pa. 234, 241, 101 A. 2d 676. See also Leaf v. Pennsylvania Co., 268 Pa. 579, 584, 112 A. 243, where one expert testified to a value of $4000. and another placed the value at $160,000.

* On the subject of proper and improper examination and cross-examination concerning sales in the neighborhood, see: Girard Trust Co., Trustee v. Philadelphia, 248 Pa. 179, 93 A. 947; Greenfield v. Philadelphia, 282 Pa. 344, 127 A. 768; Rea v. Pittsburg & Connellsville Railroad Company, 229 Pa. 106, 78 A. 73; McSorley v. Avalon School District, 291 Pa. 252, 139 A. 848; East Brandywine & Waynesburg R. R. Co. v. Ranck, 78 Pa. 454; Houston v. Western Washington R. Co., 204 Pa. 321, 54 A. 166; Kaufman v. Pittsburg C. & W. R. Co., 210 Pa. 440, 60 A. 2.