York City Redevelopment Authority v. L. W. Parsley, et al. (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA York City Redevelopment Authority : : v. : : Larry W. Parsley and Bobby J. Parsley, : Appellants : BEFORE: No. 1350 C.D. 2007 Argued: April 7, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE McCLOSKEY FILED: May 13, 2008 Larry W. Parsley and Bobby J. Parsley (Appellants) appeal an order of the Court of Common Pleas of York County (trial court) denying its post-trial motions. We now affirm. Appellants were the fee simple owners of real property located at 315317 North George Street, York, York County, Pennsylvania. In early 2006, representatives from the York County Industrial Development Association (YCIDA) and the Redevelopment Authority of the City of York (Authority) entered into negotiations with Appellants for the purchase of their property. By letter dated March 21, 2006, Matthew E. Jackson, Esquire, Executive Director for the Authority, offered Appellants $150,000.00 for their property based on the appraised value of the property as $87,100.00. The letter indicated that Appellants had until April 10, 2006, to accept the offer. Appellants, however, did not accept the Authority s offer. Shortly thereafter, on April 26, 2006, the Authority filed a notice of declaration of taking of Appellants property with the Court of Common Pleas of York County (trial court) pursuant to the Eminent Domain Code (Code).1 The declaration of taking indicated that the purpose of the condemnation was to eliminate a blighted area because of unsafe, unsanitary and inadequate conditions. On May 18, 2006, Appellants filed preliminary objections to the declaration of taking. Appellants asserted that the taking was excessive as the purpose of the taking was not the elimination of blight, as asserted by the Authority, but was to make additional lands available for the private construction of a baseball stadium located near their property. Nevertheless, on August 31, 2006, Appellants withdrew their preliminary objections. On June 13, 2006, the Authority filed a petition for appointment of a Board of View. The trial court granted the petition and appointed a three-member Board of View. Subsequently, on June 22, 2006, the Authority filed a petition for a writ of possession and the court issued a rule to show cause. The rule indicated that the Authority had made a written offer to Appellants in the amount of $87,100.00 on March 21, 2006. Appellants filed an answer to the rule and new matter on July 17, 2006. In their answer, Appellants denied that they had been previously offered $87,100.00 and alleged that the prior written offer was $150,000.00. In their new matter, Appellants alleged that the original appraisal should be amended because of recent information on rents received by them. 1 Act of June 22, 1964, Special Sess., P.L. 84, as amended, formerly 26 P.S. §§1-101-1903, repealed by section 5(2) of the Act of May 4, 2006, P.L. 112. Although repealed, the Code governs this case because, with certain exceptions not applicable here, the new statute applies only to condemnations occurring on or after its September 1, 2006, effective date. See In Re: Condemnation by the County of Berks, 914 A.2d 962 (Pa. Cmwlth. 2007). 2 The Board of View conducted a view of the real property on July 18, 2006. The parties respective counsel and Appellant Larry Parsley were present during the view. A hearing was thereafter held before the Board of View on August 3, 2006, at which Elliott Weinstein, a certified general real estate appraiser, testified on behalf of the Authority. Blanda Nace and Larry Parsley testified on Appellants behalf.2 On August 7, 2006, the Authority filed a motion to make the rule absolute for a writ of possession in the amount of $87,100.00 and a memorandum of law in support of the motion. The Authority asserted that the official appraisal of the property was $87,100.00, as made by its qualified valuation expert under the Code, and, therefore, that figure represented just compensation as required under the Code.3 The Authority argued that the $150,000.00 figure was merely an offer of settlement made during negotiations, which Appellants did not accept, and, therefore, it could not be introduced into evidence or considered by the court. The Board of View s report, filed on August 28, 2006, indicated that it had determined that the amount of damages due Appellants as just compensation for the condemnation was $100,150.00. The Board of View noted that it had based its determination on the evidence submitted as well as the view of the subject property. Appellants filed an appeal with the trial court and requested a jury trial. Appellants asserted that the Board of View erred by not considering the costs they 2 Blanda Nace is identified in the record as the York County Economic Development Corporation Redevelopment Manager. 3 The City asserted that it made the offer for $150,000.00 pursuant to Section 407 of the Code, 26 P.S. §1-407, which allowed it to make an offer of estimated just compensation after the expiration of the time for filing preliminary objections. However, the City asserted that it was not bound to such a figure as the final determination of just compensation. 3 would incur for acquiring a new property, including a transfer tax fee of 1% of the purchase price, and other required fees connected with the acquisition of new property. Appellants also alleged that the Board of View erred because it failed to award a sufficient amount of damages to allow them to purchase a comparable real property. A pre-trial conference was held on November 1, 2006. After the pretrial conference, the trial court issued an order in which it narrowed the legal issue of the case to a determination of the fair market value of Appellants real property. The order established a deadline for the filing of the parties legal authority and positions, pre-trial motions and motions in limine by the close of business on December 15, 2006. The order provided that all witness lists, curricula vitae, expert reports, and exhibits were to be exchanged between the parties by December 15, 2006. Finally, the order also provided that Appellants conversations with Blanda Nace, on January 6, 2006, were inadmissible in the jury trial.4 On November 21, 2006, the Authority filed a motion in limine alleging that Appellants had referenced an appraisal report and exhibits in their pre-trial memorandum but had not provided such documents to it in violation of a local rule. The Authority requested that the court order the production of those documents. On December 4, 2006, Appellants filed a response to the motion in limine and admitted that they intended to provide such exhibits to the Authority but had not done so because not all of the exhibits had been finalized. Appellants alleged that the requested exhibits were not due until December 15, 2006, per the 4 Appellants had requested in their pre-trial conference memorandum that the court make such a determination on admissibility. 4 trial court s order, and, thus, the Authority s motion was filed prematurely. Appellants asserted that they had been engaged in telephone conversations with the Authority about the exhibits and that the Authority filed the motion without allowing a reasonable time for their response. Therefore, Appellants asserted that the Authority s motion was filed as simply harassment. (Appellants Response to Motion in Limine at paragraph 7). On December 15, 2006, Appellants timely filed a document entitled Legal Memorandum of Fair Market Value. Appellants argued that their experts were prepared to testify that the appraised value of the real property was $240,000.00 and that it would cost over $300,000.00 to purchase a comparable performing property. Appellants argued that such testimony and information would provide insight to the jury in determining the fair market value of the condemned property and awarding just compensation under the law. The Authority did not file a legal memorandum. It did file a motion in limine to exclude the testimony of Appellant s expert, Kimberly J. Krynock, a licensed real estate agent and appraiser, based on her letter dated December 14, 2006. The Authority alleged that she failed to provide any insight into the fair market value of the property immediately before and after the taking as required by the Code.5 The Authority asserted that the letter improperly focused on the estimated cost of acquiring replacement property rather than the fair market value of the subject property and, thus, requested that her testimony be excluded. On December 18, 2006, Appellants filed their own motion in limine to exclude the testimony of the Authority s expert, Elliott Weinstein, and his written appraisal dated September 14, 2005, because it pre-dated the date of taking by 5 Section 602(a) of the Code, 26 P.S. § 1-602(a). 5 approximately nine months. Appellants alleged that an appraisal that was approximately nine months old by the time of the taking and that was relied upon by the expert for a determination of fair market value did not meet the before and after standard as required by Section 602(a) of the Code. The Authority responded by filing an answer on December 21, 2006 in which it alleged that its expert s testimony should not be excluded because he had testified before the Board of View that his valuation opinion did not change given the passing of those months.6 By order dated January 7, 2007, the trial court denied the relief requested by Appellants and granted the relief requested by the Authority. It denied Appellants motion in limine to exclude the testimony of the Authority s expert, Elliott Weinstein, because it was untimely filed and the grounds for the motion were easily ascertainable in sufficient time to permit a timely filing. The trial court granted the Authority s motion to exclude the testimony of Kimberly J. Krynock because it found that her letter was insufficient to support her expert opinion because it only mentioned the replacement value for acquiring a new property and not the fair market value of the subject property. The trial court also directed that any of Appellants exhibits which it did not provide to the Authority by the December 15, 2006 deadline would be inadmissible at trial. The matter proceeded to a jury trial which was held on January 17 and January 18, 2007. At the conclusion of the trial, Appellants requested that the jury be instructed on the imposition of realty transfer taxes, but the trial court refused to 6 In its answer to the motion in limine, the Authority asserted several times that the date of the report was August 12, 1985. However, the record otherwise indicates that the report was produced on August 12, 2005. 6 so instruct. The jury returned a verdict in favor of Appellants for $153,000.00. Appellants filed post-trial motions on January 24, 2007, requesting that the verdict be molded to incorporate delay damages, attorney fees, and appraisal costs. Appellants further requested that the trial court order a new trial because it alleged that the court erred in excluding the testimony of Kimberly J. Krynock, in permitting the testimony of Elliott Weinstein, and by refusing to instruct the jury as to the imposition of realty transfer taxes. On January 26, 2007, the Authority filed a response to the post-trial motions and averred that the trial court had not acted improperly. By order dated June 20, 2007, the trial court granted Appellants posttrial motion to mold the verdict and molded the same to $157,173.40 to include $3,673.40 in delay damages and $500.00 in statutory attorney fees. The trial court denied Appellants post-trial motions with regard to the expert testimony of Kimberly J. Krynock and Elliott Weinstein. The trial court also denied the posttrial motion with regard to its alleged failure to instruct the jury about the realty transfer tax. Appellants filed a notice of appeal on July 10, 2007 with respect to the denial of these motions. On appeal7, Appellants first assert that the trial court improperly excluded Kimberley J. Krynock s testimony as an expert real estate agent and appraiser based on her letter which summarized her involvement in evaluating the 7 Our scope of review in a condemnation case is limited to determining whether the trial court abused its discretion or committed an error of law. In re Condemnation by Township of Manheim, 868 A.2d 38 (Pa. Cmwlth.), petition for allowance of appeal denied, 585 Pa. 697, 889 A.2d 89 (2005). This Court will not reverse a trial court s grant or denial of post-trial motions absent a manifest abuse of discretion or clear error of law. City of Philadelphia v. Benedetto, 801 A.2d 1276 (Pa. Cmwlth. 2002). 7 subject property and her attempts to locate replacement properties. Appellants assert that she would have testified that it would have cost Appellants over $300,000.00 to purchase a comparable replacement property and that such testimony was relevant because that figure was not even close to the valuation of the property proposed by the Authority s expert witness. Appellants aver that such testimony is allowed because the Code speaks to fair and just compensation, in a manner which is to place the condemnee in as good a financial position as if his or her property had not been taken. (Appellants Brief at 12). Appellants assert that: the Code provides that a condemnee is entitled to just compensation consisting of the difference between the fair market value of the condemnee s entire property immediately before the condemnation and the fair market value of its property interest remaining after such condemnation and as affected thereby, together with any other damages provided for in the Code. This standard is known as the before and after rule. The fundamental principle underlying the constitutional requirement of just compensation is one of indemnity, and the fair market value of property immediately before and after a taking is the customary measure of determining compensation, whether in de jure or de facto takings. (Appellants Brief at 12 13 (citing Section 602 of the Code, 26 P.S. § 1 -602)). Appellants assert that case law has mandated that a determination of just compensation must include consideration of the highest and best use for which the property is adaptable in the near future, what a willing buyer would pay in cash to a willing seller, the value of the property prior to condemnation and may include replacement and repair costs of buildings and machinery conducted on manufacturing premises that cannot be carried out anywhere else. (Appellants 8 Brief at 14). Appellants assert that Kimberly J. Krynock s testimony would have included information about comparable replacement property with similar management styles, maintenance demands, number and type of tenants, and similar returns. Finally, Appellants assert that her testimony would have been very insightful to the jury as to the amount of damages that they could have been awarded in order to see the condemnee put in as similar a position as they found themselves prior to the condemnation proceeding. (Appellants Brief at 14). The Authority responds that the decision to admit or exclude evidence, including expert testimony, is within the sound discretion of the trial court and the Commonwealth Court s standard of review is very narrow and limited to an abuse of discretion or error of law. The Authority argues that the trial court did not abuse its discretion or make an error of law in this case. The Authority argues that the trial court properly excluded Kimberly J. Krynock s testimony because her letter failed to provide any reference to the fair market value of the property immediately before and after the taking as required by Section 603 of the Eminent Domain Code. (Authority s Brief at 3). It agrees with Appellants recitation of the Code and its proposition that the condemnee is entitled to just compensation for the taking, injury, or destruction of his property. However, the Authority argues that because just compensation is based on the fair market value of the condemnee s property interest immediately before the condemnation and the fair market value of his property remaining immediately after such condemnation, any expert who has failed to refer to the fair market value is properly excluded from testifying. (Authority s Brief at 3). The Authority next argues that, according to Section 705(2) of the Code, 26 P.S. § 1-705(2), an expert may testify as to the valuation of the property 9 on a comparable market value, reproduction cost, or capitalization basis and Kimberly J. Krynock did not consider any of those allowable approaches to valuation. The Authority also notes that Appellants did not produce any legal authority to support their position that an expert s testimony concerning replacement cost is admissible. Further, the Authority argues that, to constitute reversible error, not only must the ruling be found to be erroneous, but it must also be harmful or prejudicial to the complaining party. (Authority s Brief at 3, citing Harris v. Toys R Us Penn, Inc., 880 A.2d 1270 (Pa. Super. 2005), petition for allowance of appeal denied, 586 Pa. 770, 895 A.2d 1262 (2006)). In this case, the Authority argues that Appellants were not prejudiced by the exclusion of Kimberly J. Krynock s testimony because at the jury trial, a second expert witness, Rick Lobianco, a qualified valuation expert, testified on their behalf about the value of the property using the appropriate methods of valuation under the Code. According to Section 601 of the Code, the condemnee shall be entitled to just compensation for the taking, injury or destruction of his property. 26 P.S. § 1-601. Section 602 provides that just compensation shall consist of the difference between the fair market value of the property immediately before the condemnation and immediately after the condemnation. Thus, as Appellants expert witness, Kimberly J. Krynock, was only prepared to testify as to replacement value and not fair market value of the subject property, it appears that her testimony was properly excluded by the trial court. Moreover, Appellants did not provide legal support for their argument that such testimony concerning replacement value is allowable under the Code. Thus, we must conclude that the 10 trial court did not abuse its discretion or commit an error of law in excluding Kimberly J. Krynock s testimony. Appellants next allege that the trial court erred in denying its motion in limine to exclude the testimony of Elliott Weinstein because it was untimely filed. The motion was filed after the trial court imposed a deadline for the filing of all motions. The trial court found that Appellants were in possession of all of the information necessary to have filed the motion on time. Also, Appellants admit that the motion was filed after the deadline for filing and did not provide any additional legal support for their allegation that the trial court erred in so denying the untimely motion. The Authority contends that the trial court acted properly in allowing Elliott Weinstein to testify because Appellants motion in limine requesting the exclusion of his testimony was untimely filed. The Authority argues that the trial court did not abuse its discretion in enforcing a previously entered order which required all motions to be filed by a certain date. The Authority argues that Appellants had more than one month from the date of the order to file a timely motion and the grounds for the motion were easily ascertainable in sufficient time to permit a timely filing. Appellants assert that the trial court improperly ruled on its motion to strike the testimony of Elliott Weinstein at trial because the expert witness never said that the value of the subject property on the date of taking was his opinion within a reasonable degree of professional certainty. (Appellants Brief at 17). Appellants argue that the Authority only asked the expert witness if his final opinion of value, as $87,100.00, was within a reasonable degree of certainty and then asked him if the market had changed from his appraisal until the date of 11 taking in his professional opinion. (Appellants Brief at 17). Appellants assert that the expert did not state that the market did not change within a reasonable degree of certainty as required by Rule 702 of the Pennsylvania Rules of Evidence. As to the testimony of Elliott Weinstein at trial, the Authority argues that said testimony was expressed with a reasonable degree of certainty as indicated by the following exchange between the expert witness and counsel at trial: Q: All right. So your final opinion of value was $87,100? A: Correct. Q: All right. And that s your professional opinion within a reasonable degree of appraisal certainty? A: Yes, it is. Q: All right. And that, of course, was issued your report is September of 2005, and the date of taking was April 2006. Without factoring baseball, excluding baseball, in your professional opinion, did the market change? A: No, it did not. Q: All right. So that number still holds through April 2006. A: Yes, it does. (Authority s Brief at 7, R.R. at 249a). It appears that the trial court properly refused to strike the expert witness s testimony as he sufficiently, although not as precisely as Appellants might have liked, indicated that he was making such a statement to a reasonable degree of certainty. Thus, we must conclude that the trial court did not abuse its discretion or commit an error of law in allowing Elliott Weinstein to testify and in refusing to strike his testimony at trial. Finally, Appellants assert that the trial court erred when it refused to instruct the jury on the imposition of realty transfer taxes as they requested at the 12 conclusion of the trial. Appellants aver that the trial court has broad discretion in phrasing the instructions to the jury. Appellants assert that because of the importance of the testimony at trial as to the value of a comparable property, the instruction about the realty transfer taxes would have provided the jury with substantial guidance, support, and knowledge to have better performed their duty. (Appellants Brief at 17). The Authority agrees that the trial court has broad discretion in phrasing jury instructions, but disagrees that it made an error in not instructing the jury as to the imposition of realty transfer taxes. The Authority argues that the trial court may only charge on the law for which there is factual support in the record. (Authority s Brief at 7, citing Williams v. Southeastern Pennsylvania Transportation Authority, 741 A.2d 848 (Pa. Cmwlth. 1999), petition for allowance of appeal denied, 563 Pa. 680, 759 A.2d 925 (2000)). The Authority properly notes that Appellants requested jury instruction was irrelevant as the only issue for the jury was the determination of just compensation which does not include a consideration of the imposition of realty transfer taxes. The Authority also properly notes that Appellants did not cite any section of the Code or any case law to support their request for such an instruction. Thus, we must conclude that the trial court did not abuse its discretion or commit an error of law in refusing to instruct the jury on the imposition of realty transfer taxes. Accordingly, the order of the trial court is affirmed. JOSEPH F. McCLOSKEY, Senior Judge 13 IN THE COMMONWEALTH COURT OF PENNSYLVANIA York City Redevelopment Authority : : v. : : Larry W. Parsley and Bobby J. Parsley, : Appellants : No. 1350 C.D. 2007 ORDER AND NOW, this 13th day of May, 2008, the order of the Court of Common Pleas of York County is hereby affirmed. JOSEPH F. McCLOSKEY, Senior Judge

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