| ICSC Legal Database - Cases | Monday, February 22, 1999 05:01 PM |
| Citation: |
| Amoca Oil Co. v. Dept. of Transp., 679 A.2d 1369 (Pa. Commw. Ct. 1996); appeal denied, 692 A.2d 567 (Pa. |
| Issue: |
| (1) Whether the failure of a party to raise certain objections during a preliminary proceeding serves as a waiver of |
| those objections? (2) Whether a judge is required to join the jury in viewing of subject property? (3) Whether |
| testimony concerning non-conforming uses of a certain property is admissible to determine the extent of the |
| Facts: |
| Appellant Condemnee leased property that was affected in a taking by Appellee Department of Transportation |
| (DOT). Condemnee operated a gas station on the property. The local zoning ordinances made the gas station a |
| non-conforming use but as the station predated the ordinances, it was permitted. In an earlier proceeding, the |
| court held that Condemnee had standing in the suit for damages. The trial court granted the owner of the |
| property (also Appellant in this case) minimal damages and none to Condemnee. Condemnee filed a motion for |
| a new trial which the trial court denied. |
| Holding: |
| Judgment reversed. Remanded for new trial. (1) Condemnee filed a motion in limine to limit testimony to |
| damages. The argument was that DOT had the opportunity to raise any objections during the preliminary |
| proceeding concerning Condemnee's standing. Since it did not, Condemnee argues that it waived the right to do |
| so. The code does require the court to determine objections preliminarily. However, the case law suggests that |
| this requirement applies only to questions of law. Questions of mixed law and fact, as were DOT's objections, |
| should be reserved for trial. (2) This is a question of first impression. The Pennsylvania Code clearly states that |
| in jury trials, the judge shall accompany the jury when they visit a site. The judge's failure to observe the |
| property firsthand resulted in inadequate jury instructions. As such, it was harmful to the Condemnees and was |
| (3) At trial, DOT brought experts that explained that Condemnee would not be stopped from operating a station |
| on the property despite the taking because it was rare for municipalities to close an existing business when a |
| condemnation affects their zoning status. The rule is that evidence that would increase the value of property is |
| inadmissible if the increase was a result of a use proscribed by zoning regulations. There are exceptions when it |
| is clear that there will be a change in the zoning laws. In this case, there is no evidence that a change is |
| imminent and thus, the testimony was inadmissible. |
| One judge dissented in part to the opinion. In his opinion, the preliminary proceeding established that |
| Condemnee had standing and therefore, as DOT made no objections, the trial should have been limited to |
| damages. Also, the failure of the judge to attend the viewing was error but not necessarily reversible. A second |
| dissent argued that the testimony as to nonconforming uses was admissible because Condemnee could have |
| received a variance to continue his operation. As Condemnee did not even apply for one, the testimony was |
| Classification 1: |
| Condemnation/Eminent Domain |
| 00129 - Legal Update - Winter 1997 |
|
