Condemnation by the Pa. Tpk. Comm'n v. Tarlini

185 A.3d 1177

In re: CONDEMNATION BY the PENNSYLVANIA TURNPIKE COMMISSION of Property Located in the Township of Bensalem (Incorrectly Identified as the Township of Bristol in the Notice to Condemnees), Bucks County, Commonwealth of Pennsylvania, for the I–95 Interchange Project (Parcel ID No. 02–033–004)

v.The LANDS OF Lewis TARLINI and Louise Ann Tarlini, Husband and Wife, of Bensalem Township, The Eminent Domain County of Bucks, Commonwealth of Pennsylvania, Condemnees

Appeal of: Pennsylvania Turnpike Commission

No. 1131 C.D. 2017

Commonwealth Court of Pennsylvania.

Argued: March 8, 2018

Decided: April 10, 2018

Mark D. Bradshaw, Harrisburg, for appellant.

David B. Snyder, Philadelphia, for appellees.

BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY JUDGE COVEY

The Pennsylvania Turnpike Commission (Commission) appeals from the Bucks County Common Pleas Court's (trial court) June 16, 2017 order denying its Motion for Post–Trial Relief (Motion). The sole issue before this Court is whether the trial court erred by admitting a hearsay affidavit as the basis for an expert's valuation opinion. After review, we affirm.

On April 27, 2007, the Commission filed a declaration of taking (Declaration) condemning Lewis Tarlini's and Louise Ann Tarlini's (the Tarlinis) property formerly located at 2986 Galloway Road, Bensalem, Pennsylvania (Property). The Property is adjacent to and partially surrounded by the Parx Casino and Racetrack (Parx Casino). The remainder of the Property abuts the Pennsylvania Turnpike. The Property was zoned residential at the time the Declaration was filed. The existing access to the Property was through a deeded 12–foot right-of-way. On May 5, 2008, a Petition to Appoint Board of Viewers was filed. On June 4, 2008, the trial court appointed a Board of Viewers; however, on July 24, 2008, that order was vacated and a new Board of Viewers was appointed. On February 8, 2010, the Board of Viewers filed its report. On March 5, 2010, the Commission appealed from the Board of Viewer's Award.

On January 2, 2006, more than a year before the Declaration's filing, the Tarlinis entered into a Purchase and Sale Agreement (Sale Agreement) with a purchaser who intended to develop a hotel on the Property. The negotiated purchase price was $2,200,000.00.¹ However, the condemnation prevented the Property's sale.

The trial court commenced a jury trial on February 13, 2017, wherein, the sole issue was the Property's fair market value as of the Declaration date.² The Commission contended that the Property's highest and best use was as a residence. The Tarlinis argued that the Property's highest and best use was as a hotel. In support of the Tarlinis' position, Lewis Tarlini testified, and land planner John H. Kennedy (Kennedy), zoning lawyer John A. VanLuvanee (VanLuvanee), traffic engineer David Horner (Horner) and appraiser Vincent Quinn (Quinn) (collectively, Tarlinis' Experts) also testified. Appraiser William Gontram testified on the Commission's behalf.

The Tarlinis' Experts offered their opinions that the Property was adaptable to hotel use, and that there was a market for such a use in that area. Among the factors the Tarlinis' Experts considered in concluding that the Property was adaptable to hotel use, was whether there was adequate access to the Property from a public road, and the likelihood the Property would be rezoned.³

In its June 16, 2017 decision, the trial court described the evidence supporting the Tarlinis' position that Property access would be reasonably available:

Lewis Tarlini testified that he used and maintained the area that would have been used for the driveway without being told to cease by the Parx [Casino] [p]roperty owner. He further testified that there was a driveway for his home and that he regularly cleaned and mowed that area as well[,] and removed and pruned trees. He testified that the Parx [Casino] property owner built a fence that severed the proposed easement area from the rest of the Parx [Casino] property.

[Kennedy] testified about the probability that the [P]roperty owner could have obtained an easement for a driveway over the Parx [Casino] property. He laid out the foundation for that testimony by stating, that he looked at the area to see if Parx [Casino] was using it, and whether it would infringe upon the main operation of the use of the property as a casino or racetrack business. Ultimately, [ ] Kennedy also relied upon the [affidavit of Thomas Bonner (Bonner), the Vice President and General Counsel of Greenwood Racing, Inc., Parx Casino's owner and operator (Bonner Affidavit)⁴ ] to reach the conclusion that the [Tarlinis] could have obtained an easement for a driveway over the Parx [Casino] property. The Bonner Affidavit is a written and notarized statement signed by [Bonner] .... [Bonner] stated that it is probable for a number of reason[s] that [the Tarlinis] would have been able to acquire a driveway easement over the Parx [Casino] [p]roperty for use as a commercial property.

[Quinn] testified that the [Tarlinis] could have obtained access over the Parx [Casino] property for a hotel. He had appraised the Parx [Casino] property several times and knew [ ] Bonner. Based upon his experience with the Parx [Casino] property and his dealings with the representatives of the Parx [Casino] property, [ ] Quinn concluded that [ ] the Tarlinis could have obtained access.

Trial Ct. Decision at 5–6 (citations omitted).

In a sidebar conference during the Tarlinis' Counsel's direct examination of Kennedy, the Commission's Counsel objected to the Tarlinis' use of the Bonner Affidavit, contending that it was not probative and it was hearsay. See Reproduced Record (R.R.) at 99a. The following exchange occurred:

THE COURT: To the extent that [the Tarlinis' Counsel] thinks it says something, he can argue it says something. I am going to let him put that to the jury, No. 1.

No. 2, as to the issue of it being hearsay, it is hearsay, but it's an expert opinion, and this is the more difficult area in terms of expert testimony. Under the federal rule, they allow experts to just wax on forever—

[COMMISSION'S COUNSEL]: But this—

THE COURT: Under the Pennsylvania Rules of Evidence, you have to prove the underlying fact. Knowing that, and knowing that you had knowledge of the information in the affidavit, I am going to let the testimony—I'm going to let [Kennedy] describe that he had knowledge that that person said those words and that those words support his ultimate conclusion.

I'm going to say to you, you could have deposed that person, and you still could bring that person into the courtroom and cross-examine him, I guess, in theory. I don't know where the guy is or anything about him; I'm just telling you what I'm thinking through in terms of my ruling.

[COMMISSION'S COUNSEL]: It would seem to me in order to meet the evidentiary threshold there would need to be—showing this would be the sort of material an expert would ordinarily rely on.

THE COURT: I think he just said—when I heard the testimony. He said I would normally go out and speak to people and I would ask people, and that is where I sort of was watching objecting, not objecting, and you were properly waiting for the right question, but I think he covered that. He might want to supplement it with a couple more questions, but I want to be real clear that nothing comes in beyond what was said in [the Bonner A]ffidavit as to what he relied on.

[TARLINIS' COUNSEL]: May I show [the Bonner A]ffidavit?

THE COURT: I think it would make most sense to show the [Bonner A]ffidavit to hold him within the four corners, but I'll listen to Counsel's argument, yes or no. If you think there is an issue about the jury having published the [Bonner A]ffidavit, I'll listen to it.

[COMMISSION'S COUNSEL]: I have a problem with the [Bonner A]ffidavit from start to finish.

THE COURT: I understand.

[COMMISSION'S COUNSEL]: I don't know that publishing changes—

THE COURT: As long as I—I want to keep him in the framework, but you don't care, you don't feel you are unduly—you feel you are being prejudiced by allowing the information to come in. So noted; you are preserving that.

Whether it is shown by a picture of the [Bonner A]ffidavit or him reading it, you don't care one way or the other?

[COMMISSION'S COUNSEL]: No, I think I'm equally prejudiced either way.

THE COURT: All right, you made your record on that.

R.R. at 100a–103a. Kennedy then explained that, in situations like the Tarlinis' circumstances, he typically reached out to adjacent property owners to determine if the adjacent owners would be willing to grant an easement. The trial court then explained to the jury:

THE COURT: I'm going to stop here for a moment and give the jury a mini lesson in the law in the hopes you'll understand the weight you should give or not give. It's up to you to determine how much weight you are going to give an expert's testimony.

One of the issues raised by [the Commission's] Counsel at sidebar is whether or not the information you are about to see is hearsay. The person who created this [Bonner A]ffidavit isn't in the courtroom and is not subject to being cross-examined.^[5]

You have heard that term hearsay before. The purpose of the hearsay rule is to allow someone to cross-examine a witness in front of the jury or the factfinder. Some statements made by a person are admissible for a particular reason but not for another reason, in other words, a statement made that this witness is aware of is the basis of his opinion.

At the end of the day, if the statement has some weakness to it, you feel it's insufficient to provide his interpretation, that goes to your decision of whether or not this expert's opinion is worthwhile.

You are going to see some information he relied on. You will then have to decide whether or not that information really is sufficient for the purpose of him coming to the final conclusion he reached.

With that

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