Opinion

UGI Sunbury LLC v. A Permanent Easement

Court
District Court, M.D. Pennsylvania
Filed
Nov 4, 2021
Cited by
0 cases
Authority
More cited than 29.1%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UGI SUNBURY LLC, No. 3:16-CV-00794

Plaintiff, (Chief Judge Brann)

v.

A PERMANENT EASEMENT FOR

0.4308 ACRES, et al.,

Defendants.

MEMORANDUM OPINION

NOVEMBER 4, 2021

In advance of trial, the Plaintiff and Defendants filed competing motions in

limine asking the Court to exclude the expert testimony and reports put forward by

the opposing side. Both parties ask the Court to deem the opposing expert’s

opinions inadmissible based solely on disputed factual premises. Both parties then

defend the admissibility of their experts’ opinions by arguing that disputed factual

premises affect only the weight of the proposed evidence, not its admissibility. A

conundrum, indeed.

As happens when both parties stake out the same contradictory positions,

they are both equally wrong and right. Here, the parties are correct that an expert’s

reliance on disputed facts is not a valid reason for excluding his opinion. As such,

both motions to exclude expert testimony are denied.

I. BACKGROUND

A. Factual Background and Initial Proceedings

On May 6, 2016, energy company UGI Sunbury LLC filed its initial

Complaint in Condemnation, seeking to acquire by eminent domain easements for

use in constructing a natural gas transmission pipeline across the property owned

by Donald and Georgia Pontius (collectively, “Pontius”).1 The Pontius property is

located in the Borough of Shamokin Dam, Snyder County, Pennsylvania on a

highly developed commercial strip along U.S. Route 15 referred to by some as “the

Golden Strip.”2 The initial Complaint sought, among other things, a “permanent

right of way and easement . . . for the purpose of constructing, operating,

maintaining, altering, repairing, changing the size of, replacing and removing a

pipeline and all related equipment and appurtenances thereto (including but not

limited to meters, fittings, tie-overs, valves, cathodic protection equipment and

launchers and receivers)” as well as a restriction on Pontius’s ability to “use said

permanent right of way or any part thereof for a road.”3

On August 2, 2016, the Court granted UGI’s Motion for Preliminary

Injunction and Motion for Partial Summary Judgment (the “August 2016 Order”),4

“thereby allowing [UGI] access and possession of a portion of the [Pontius]

1 Doc. 1.

2 Doc. 143-2, Appx. Tab 1 at 24.

3 Doc. 1 at ¶ 1.i.(i).

property for construction of the underground natural gas transmission pipeline and

the use of temporary work space needed during construction activity.”5 Put another

way, the Court granted UGI the easement rights requested in its initial

Complaint—including the right to install aboveground appurtenances and prevent

certain vehicle activity above the pipeline.6

After the Court’s August 2016 Order, “UGI installed the pipeline on

[Pontius’s] property and restored the surface of the property.”7 Both parties then

hired expert witnesses to conduct appraisals of the property.8 On May 17, 2018, the

action proceeded to a bench trial and the parties presented testimony by their

respective expert witnesses.9 After the trial, the Court issued its ruling and directed

the Clerk to enter judgment in favor of Pontius in the amount of $254,228.39.10

On September 24, 2018, UGI filed a Notice of Appeal to the United States

Court of Appeals for the Third Circuit.11 The Third Circuit issued its decision on

February 11, 2020, holding that the Court improperly admitted and relied on the

testimony of Pontius’s appraisal expert.12 Accordingly, the Third Circuit vacated

the Court’s judgment and remanded the case for a new valuation hearing.13

5 Doc. 143 at 2.

6 Doc. 23; Doc. 24.

7 Doc. 143 at 2–3.

8 See Doc. 63, Ex. A (Aug. 2, 2016 Appraisal Report by Don Paul Shearer); Doc. 66, Ex. A (Feb.

19, 2016 Appraisal Report by John Gillooly and Matthew S. Krauser).

9 See Doc. 109.

10 Doc. 114.

11 Doc. 116.

12 UGI Sunbury LLC v. A Permanent Easement for 1.7575 Acres, 949 F.3d 825 (3d Cir. 2020).

The Court held a status conference with the parties on April 22, 2020, and

then instructed the parties to produce new valuation evidence from their respective

appraisal experts by October 23, 2020.14

B. Pontius’s Expert: William F. Rothman

In response to this Court’s instruction, Pontius produced an appraisal report

by William F. Rothman of RSR Appraisers & Analysts, dated September 28,

2020.15 Rothman is a Certified General Appraiser as well as realtor and real estate

developer.16 He received a Bachelor of Science in Business Administration from

Pennsylvania State University’s SMEAL School (Real Estate and Insurance) and

has been a Certified General Appraiser in the Commonwealth of Pennsylvania

since August 1991.17 Rothman has extensive appraisal and real estate experience

and has been found qualified to offer expert testimony by the United States

Bankruptcy Court as well as various Pennsylvania Courts of Common Pleas.18

In his appraisal report, Rothman analyzed the pre-taking market value of the

Pontius property (i.e., the value of the property before UGI obtained the easements

and constructed the pipeline) as well as the property’s post-taking value (i.e., the

value of the property as encumbered by UGI’s easements).19

14 Doc. 127.

15 Doc. 143-2, Appx. Tab 1.

16 Id. at 12; see also Doc. 154, Appx. at 126–128.

17 Doc. 154, Appx. at 126–128.

18 Id.

To determine the pre-taking value of the Pontius property, Rothman

employed the “sales comparison approach” to value, which involves comparing the

Pontius property to similar properties with publicly available sale information.20

This methodology unfolds in two steps. First, the appraiser must determine the

“highest and best use” of the subject property.21 Rothman explained that

determining the highest and best use for currently vacant land, such as the Pontius

property, requires “following four criteria”: (a) legally permissible, (b) physically

possible, (c) financially feasible, and (d) most profitable.”22 Analyzing these

criteria as applied to the Pontius property prior to the taking, Rothman issued the

following opinions:

(a) The legally permissible uses were “largely controlled by the

zoning district in which the property is located”23; the property’s

zoning district24 permits certain retail, customer service, and other

commercial functions25;

(b) Given the size of the property (1.6 acres), “[t]he site could

physically accommodate most of the legally allowable uses”26;

(c) “Development with a commercial use compatible with the high

traffic count and the heavily developed commercial corridor such

as . . . a national retail chain restaurant or convenience store would

be considered financially feasible”27; and

20 Id. at 51.

21 Id. at 38–41.

22 Id. at 38.

23 Id. at 38.

24 Commercial Highway District (C-1) of Shamokin Dam Borough, Snyder County. Id. at 38.

25 Id. at 38–40.

26 Id. at 40.

(d) “Development with a commercial use is viewed as maximally

productive.”28

In accordance with these findings, Rothman concluded that “the highest and best

use . . . is demolition [of the current buildings on the property] and development of

the site with a commercial use.”29

Second, the appraiser must identify similar properties (based on the

“property rights conveyed, financing terms, conditions of sale, date of sale,

location, and physical characteristics”) that can be used to estimate the adjusted

“price per acre” for the subject property.30 Here, Rothman identified three

comparable properties located on “the Golden Strip” of Route 15 in Shamokin

Dam.31 Using the sale prices of the three comparable properties, with adjustments

made based on identifiable differences in market conditions and site

characteristics, Rothman calculated the adjusted price per acre for the Pontius

property as $600,000.32 As such, Rothman concluded that the total pre-taking value

of property was $950,000.33

To determine the post-taking value of the Pontius property, Rothman again

employed the sales comparison approach; however, this analysis incorporated the

28 Id. at 41.

29 Id.

30 Id. at 51–52.

31 Id. at 53–55.

32 Id. at 57–60.

33 Id. at 60. Rothman multiplied 1.6 acres (the size of the Pontius property) by $600,000 (the

adjusted price per acre), which was $960,000. Id. Rothman rounded this figure to $950,000.

burdens on the property associated with UGI’s easements and therefore included

different comparable properties.34 In assessing the highest and best use of the

property post-taking, Rothman noted that after the taking, the legally permitted

uses of the land was dictated by not only the zoning restrictions, but also the

easements detailed in the Complaint.35 Rothman explained that the easements—in

particular, the “prohibition on any use of the road”—“severely reduces the

development potential of the Pontius Property.”36 Rothman opined that “the

easement language effectively eliminates any practical or useful road use of the

sharply sloped land southwest of the permanent easement, because such road use

could not legally connect with the remainder of the land east of the pipeline

easement.”37 Therefore, “the use of the existing ingress/egress at the southwest end

of the property is prohibited by the easement.”38

Rothman concluded that the “development potential” of the property is

devalued by the “uncertainty regarding approval of driveway use within the

permanent easement” as well as “setback restrictions contained in the Borough’s

zoning ordinance” and “a real risk that a land development/stormwater

management plan would fail to obtain approval, given the use restrictions.”39 As

34 Id. at 42–47, 61–72.

35 Id. at 44.

36 Id. at 45.

37 Id.

38 Id.

such, Rothman found that the highest and best use of the Pontius property post-

taking “is for restoration of the existing buildings and its continued use as a

commercial property such as a used car lot, auto service or small retail store.”40

Due to the modified highest and best use finding, Rothman selected four

different comparable properties for the sales comparison approach.41 Specifically,

Rothman identified two properties located in Columbia County, and one property

each from Dauphin and Montour Counties.42 Based on the sales for the four

comparable properties—with adjustments made for location, usable site acreage,

and market conditions—Rothman calculated the adjusted price per square foot of

the Pontius property post-taking as $110.00.43 As such, Rothman concluded that

the post-taking value of the property is $335,000.44

Reconciling the pre- and post-taking valuations of the Pontius property—

with the “additional damage of the temporary construction easements,” calculated

as $27,500 subtracted from the post-taking value45—Rothman found that the

damage the taking caused to the value of the property amounted to $642,500.46

40 Id. at 47.

41 Id. at 62–69.

42 Id.

43 Id. at 69–72.

44 Id. at 72 (“3,042 SF x $110.00/SF” = $334,620, which Rothman rounded to $335,000).

45 See id. at 74.

46 Id. at 75 (calculated as the pre-taking value minus the post-taking value as reduced by the rental

value of the temporary construction easement area—that is, $950,000 – ($335,000 – $27,000)

C. UGI’s Expert: Matthew S. Krauser

UGI also elected to introduce new valuation evidence, as it produced an

appraisal report prepared by Matthew S. Krauser of Newmark Knight Frank, dated

October 22, 2020.47 Krauser holds a Bachelor of Arts in speech communication

from Ithaca College and a Master of Science in real estate from New York

University.48 He is a certified general appraiser in the Commonwealth of

Pennsylvania (as well as in the states of New York and New Jersey) with 26 years

of experience.49 Additionally, he is a Fellow at the Royal Institution of Certified

Surveyors and holds a CRE designation from the Counselors of Real Estate.50

As with Rothman, Krauser was asked to analyze the market value of the

Pontius property both before and after the taking occurred. In performing this task,

Krauser employed the same methodology used by Rothman: he analyzed the

highest and best use of the property both pre- and post-taking,51 and then used the

“sales comparison approach” to develop an opinion of the property’s pre- and post-

taking market value.52 Krauser explained that the sales comparison approach “is

47 Doc. 145-1, Appx. 1.

48 Doc. 145-1, Appx. 1, Add. C.

49 Id.

50 Id.

51 Doc. 145-1, Appx. 1 at 36–37.

applicable to the [Pontius property] because there is an active market for similar

properties and sufficient data available for analysis.”53

For the pre-taking valuation, Krauser developed an opinion about the

property’s highest and best use by analyzing the four standard criteria (i.e., legally

permissible, physically possible, financially feasible, and maximally productive)

and determined that “[d]evelopment of the property for commercial use is the only

use that meets the four tests.”54 Consistent with Rothman, Krauser concluded that

the current buildings on the Property “have reached the end of their economic life

from a physical and functional standpoint,” and, therefore, “the highest and best

use is for the improvements to be raised and a new commercial building to be

developed.”55

After determining the highest and best use of the Pontius property pre-

taking, Krauser identified four comparable land sales for reference.56 The sales of

the four comparable properties “reflect a range of $650,000 – $1,000,000 per site”;

with upward and downwards adjustments applied for approvals, location, and

shape, “the range is “646,875 – $878,750.”57 Krauser “place[d] emphasis on each

of the sales,” and, as such, looked at the average sale price across all four

53 Id. at 38. As with Rothman, Krauser found that neither the cost approach nor the income

approach to value were applicable, and, as such, he “use[d] only the sales comparison

approach.” Id.

54 Id. at 36.

55 Compare id. at 37 with Doc. 143-2, Appx. Tab 1 at 41.

56 Doc. 145-1, Appx. 1 at 40–43.

properties to reach a total indicated value of $750,000 for the Pontius property pre-

taking.58 Krauser noted that this estimated pre-taking valuation generally aligned

with the property’s most recent listed price: “[A]s of 2015 the property had been

listed for sale, on and off, for the past ten years at an asking price which was

$790,000.”59

For the post-taking value, Krauser determined the property’s highest and

best use by first analyzing the effect that UGI’s easements had on the property.

Krauser noted that due to the easements, “[t]he property owner is not permitted to

build any structures, change the grade of the land, or plant any permanent trees or

shrubbery within the permanent right of way.”60 However, in stark contrast with

Rothman, Krauser stated that “it is [his] understanding that the owner may cross

the easement with a paved road or driveway and can construct potential parking

spaces within the easement area.”61 As such, Krauser acknowledged that “the

easement area does not affect the highest and best use of the property and there is

therefore no damage to the remaining area.”62

Because he found that “the description of the property is essentially the same

before and after the acquisition of the new easement,” Krauser did not select new

58 Id.

59 Id.

60 Id. at 34.

61 Compare id. with Doc. 143-2, Appx. Tab. 1 at 45.

comparable properties for the post-taking evaluation.63 Instead, Krauser

“determined the best way to estimate the impact of the easement is [to] focus on

the market value of the underlying land at the [Pontius property].”64 Krauser

divided the pre-taking value of the property ($750,000) by the tract size (69,914 sq.

ft.) to determine the market value per square foot ($10.73).65 Krauser then

multiplied the value per square foot by the size of the right of way (18,766 sq. ft.)

to determine the “fee simple value” of the right of way area ($201,359).66 Because

he “conclude[d] that [UGI’s easements] will not have an adverse effect on the

remainder of the [Pontius property],” Krauser “utilize[d] 75% of the fee simple

value in [his] valuation analysis” of the easements.67 Put differently, Krauser

multiplied the fee simple value of the right of way ($201,359) by the easements’

percentage of the fee simple rights (75%) to calculate the market value of the

easement ($151,019, which he rounded to $151,000).68

Applying these findings, Krauser determined the post-taking value of the

Pontius property by subtracting from the pre-taking value ($750,000) the easement

valuation ($151,000) and the temporary construction and access easements

($12,800)—that is, the “equivalent of the land encumbered for an estimated 12-

63 Id. at 46.

64 Id.

65 Id.

66 Id. at 48.

67 Id. at 47.

month period” for the construction of the pipeline69—which ultimately came to

$586,200.70 Reconciling the pre-taking value ($750,000) and post-taking value

($586,200), Krauser concluded the difference in the property’s market value was

$163,800.71

D. Procedural Posture

Prior to trial, on July 22, 2021, UGI filed a motion in limine to exclude

Rothman’s testimony pursuant to Federal Rule of Evidence 702.72 The following

day, July 23, 2021, Pontius responded in kind, filing a motion in limine to exclude

Krauser’s expert testimony and report.73 The parties fully briefed both motions.74

On September 20, 2021, after a pre-trial conference with counsel for both

parties, the Court issued a Scheduling Order explaining that it would conditionally

admit Rothman’s and Krauser’s expert testimony and reports, subject to a later

Rule 702 determination to be made following trial.75 Both parties were therefore

permitted to present their appraisal experts at trial.76

The trial on this matter was held on October 12, 2021. Rothman and Krauser

presented their opinions, with both providing testimony consistent with their

69 Id.

70 Id. at 50.

71 Id. at 5, 51.

72 Doc. 142.

73 Doc. 144.

74 Rothman: Docs. 143, 147, 149; Krauser: Docs. 145, 146, 150.

75 Doc. 157 at 2.

written appraisal reports. Counsel for Pontius and UGI reiterated their objections to

the expert testimony as outlined in their motions in limine.

The parties’ motions in limine are now ripe for disposition.

II. LEGAL STANDARD

Federal Rules of Evidence 702 and 703 govern the admissibility of expert

testimony and set forth certain criteria for admissibility. Expanding upon those

rules, the Supreme Court of the United States explained the standard for

admissibility of expert testimony in Daubert v. Merrell Dow Pharm., Inc.77 In

Daubert, the Court delegated a “gatekeeping responsibility” under Rule 702 to

District Courts, which requires that trial judges determine at the outset whether an

expert witness may “testify to (1) scientific knowledge that (2) will assist the trier

of fact.”78 That gatekeeping function demands an assessment of “whether the

reasoning or methodology underlying the testimony is scientifically valid” as well

as “whether that reasoning or methodology properly can be applied to the facts in

issue.”79 A District Court “exercises more control over experts than over lay

witnesses,” since “[e]xpert evidence can be both powerful and quite misleading

because of the difficulty in evaluating it.”80

77 509 U.S. 579 (1993).

78 Id. at 592.

79 Id. at 592–93.

Following Daubert, the Third Circuit cast expert admissibility

determinations in light of three basic requirements: (1) qualification; (2) reliability;

and (3) fit.81 The qualification prong demands that the proffered expert possess

sufficient “specialized knowledge” to testify as an expert.82 To satisfy the

reliability prong, an expert’s opinion “must be based on the ‘methods and

procedures of science’ rather than on ‘subjective belief or unsupported

speculation.’”83 The Third Circuit has set forth eight non-exclusive factors that “a

district court should take into account” when deciding the reliability of expert

testimony:

(1) whether a method consists of a testable hypothesis;

(2) whether the method has been subject to peer review;

(3) the known or potential rate of error;

(4) the existence and maintenance of standards

controlling the technique’s operation;

(5) whether the method is generally accepted;

(6) the relationship of the technique to methods which

have been established to be reliable;

(7) the qualifications of the expert witness testifying

based on the methodology; and

(8) the non-judicial uses to which the method has been

put.84

81 In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 741–43 (3d Cir. 1994).

82 Id. at 741.

83 Id. at 742 (quoting Daubert, 509 U.S. at 589).

Regarding the fit prong, the Third Circuit explained that admissibility depends on

“the proffered connection between the scientific research or test result” and the

“particular disputed factual issues.”85

The burden of proof for admissibility of expert testimony falls upon the

party that seeks to introduce the evidence.86 However, as the Third Circuit has

emphasized, “[t]he test of admissibility is not whether a particular [expert] opinion

has the best foundation or whether it is demonstrably correct. Rather, the test is

whether the particular opinion is based on valid reasoning and reliable

methodology.”87 The Third Circuit further explained:

This standard is not intended to be a high one, nor is it to

be applied in a manner that requires the plaintiffs to

prove their case twice—they do not have to demonstrate

to the judge by a preponderance of the evidence that the

assessments of their experts are correct, they only have to

demonstrate by a preponderance of evidence that their

opinions are reliable.88

District Courts must always be cognizant of the fact that “[t]he analysis of the

conclusions themselves is for the trier of fact when the expert is subjected to cross-

examination.”89

85 Id. at 743 (internal quotation marks omitted).

86 Oddi v. Ford Motor Co., 234 F.3d 136, 145 (3d Cir. 2000).

87 Id. (internal quotation marks omitted).

88 Id. (internal quotation marks omitted).

III. DISCUSSION

A. Pontius’s Expert: William F. Rothman

In its motion in limine, UGI asks the Court to exclude the opinion testimony

and reports prepared by Pontius’s appraisal expert, William F. Rothman.90 UGI

does not contest Rothman’s qualifications to offer his proposed expert opinions,91

and the Court finds that any attempt to do so would necessarily fail—Rothman is a

Pennsylvania Certified General Appraiser with thirty years of experience.92 As

such, the Court finds that Rothman is qualified to offer an expert opinion about the

pre- and post-taking value of the Pontius property. UGI instead argues that

Rothman’s testimony and report should be excluded because his opinions are

unreliable and lack the necessary “fit.”93 To analyze UGI’s arguments, the Court

addresses separately the two opinions Rothman advances: (1) the pre-taking value

of the Pontius property is $950,000; and (2) the post-taking value of the property is

$355,000.94

1. Pre-Taking Value of the Pontius Property

UGI asks the Court to exclude Rothman’s opinion about the pre-taking value

of the Pontius property for two reasons: (1) it contradicts this Court’s prior ruling

90 Doc. 142.

91 Indeed, the parties stipulated that Rothman “is a qualified Real Estate Valuation Expert.” Doc.

167 ¶ 11.

92 Doc. 154, Appx. at 126–128.

93 Doc. 143.

on the property’s pre-taking value; and (2) it is unreliable because Rothman did not

rely on—or even consider—changes in the property’s list price between 2013

(when Pontius first put the property for sale) and August 2016 (the easement

acquisition date).95 Neither argument justifies excluding Rothman’s valuation of

the property prior to the taking.

First, the Court is not bound by its prior ruling on the Pontius property’s pre-

taking value. In its decision reversing this Court’s prior ruling in this case, the

Third Circuit “instruct[ed]” this Court “to allow parties a reasonable opportunity, if

requested, to produce new valuation evidence.”96 Acceding to this instruction, the

Court granted the parties’ requests to produce new valuation evidence, and both

parties obliged. Indeed, at trial, neither UGI nor Pontius relied on the reports or

testimony of the experts they presented at the initial trial. Both hired new experts

who produced entirely new expert reports, distinct from and unencumbered by the

reports prepared by their predecessors.97 The Court declines to hold Rothman’s

proposed pre-taking value inadmissible simply because it differs from the proposed

pre-taking value offered by the parties’ prior experts, neither of whom had any

involvement in the trial at hand.

Second, Pontius has established that Rothman’s opinion testimony and

report are sufficiently reliable to justify admission under Rule 702. As explained,

95 Doc. 143 at 11–13.

96 UGI Sunbury LLC, 949 F.3d at 836.

the Third Circuit outlined eight non-exhaustive factors that District Courts must

consider in deciding the reliability of expert testimony, including “whether the

method is generally accepted” and “the existence and maintenance of standards

controlling the technique’s operation.”98 Here, Rothman employed a valuation

methodology (the sales comparison approach) that is widely accepted by the

appraisal community and recognized as reliable under federal and state law.

Indeed, “[t]he sales comparison approach is the preferred method of valuation

under federal law,”99 and is identified by the Pennsylvania Eminent Domain Code

as a valid method for determining market value.100

Nevertheless, UGI asserts that Rothman’s opinion should be dismissed as

unreliable because “no analysis of active listing is presented within [Rothman’s]

report, nor is any list price provided.”101 UGI notes that the Uniform Appraisal

Standards specifically require analysis of all “listings of the subject property

current as of the effective date of the appraisal.”102 As further support, UGI directs

the Court to Durika v. School District of Derry Township103 and Pennsylvania

Dep’t of Transportation v. Bellas.104 However, as UGI acknowledges, these cases

98 In re Paoli R.R. Yard PCB Litigation, 35 F.3d at 742 n.8.

99 United States v. 80,794 Square Feet of Land, 2021 WL 2154847, at *36 (M.D. Pa. May 27,

2021) (Bissoon, J.) (citing United States v. 320 Acres of Land, More or Less in Monroe County,

Florida, 605 F.2d 762, 798 (5th Cir. 1979)).

100 26 Pa.C.S. § 1105(2).

101 Doc. 143 at 11.

102 Id. at 11–12 (citing Uniform Standards of Appraisal Practice (The Appraisal Foundation,

2016–17 Ed.), p. 21).

103 203 A.2d 474, 476 (Pa. 1964).

establish only that a listing price “may be admitted into evidence as an admission

by the property owner of what he considers the value of his property to be at the

time he made the offer”105—neither case supports UGI’s argument that an expert’s

failure to consider a property’s purchase price renders his valuation opinion per se

inadmissible.106

Rothman’s failure to follow all strictures of the Uniform Appraisal

Standards and consider all relevant information may well affect the relative weight

the Court accords Rothman’s valuation opinion. It does not, however, warrant

dismissing as unreliable a valuation based on a widely accepted method for

determining market value.

2. Post-Taking Value of the Pontius Property

UGI also asks the Court to exclude Rothman’s post-taking valuation of the

Pontius property, arguing that Rothman’s conclusion is unreliable and lacking the

necessary “fit.”107 Notably, UGI’s objection to Rothman’s post-taking valuation is

predicated exclusively on the factual and legal assumptions underlying his

105 Doc. 143 at 12–13 (emphasis added).

106 Although the legal authority UGI cites does not support its desired result, the Court recognizes

that UGI’s counsel accurately described the legal holdings at issue. Sadly, the same cannot be

said for the attorneys representing Pontius. In his opposition brief, Pontius argues that Lower

Makefield Township v. Lands of Chester Dalgewicz, 67 A.3d 772, 777 (Pa. 2013), establishes

that “[o]nly consummated arms-length purchase agreements, contracts to sell, or bona fide

offers are relevant and admissible,” Doc. 147 at 14 (internal citation omitted). But it says no

such thing. The Pennsylvania Supreme Court in Dalgewicz held that a letter of intent, which

“constituted a bona fide offer and was relied on by a qualified valuation expert in formulating

an opinion, was admissible evidence of the fair market value of the property,” 67 A.3d at 777—

it did not specify that only such bona fide offers were relevant and admissible.

conclusions; UGI does not contest the reliability or “fit” of the method Rothman

employed or his application of that method.108 Because the pretrial record did not

clearly and indisputably demonstrate that Rothman’s factual predicates were

incorrect, UGI’s disagreements about the evidence and assumptions Rothman

relied on are not a valid basis for excluding expert testimony.

Although Rule 702 provides that an expert’s testimony must be “based on

sufficient facts or data,”109 this requirement “is not intended to authorize a trial

court to exclude an expert’s testimony on the ground that the court believes one

version of the facts and not the other.”110 The Third Circuit has held that “[i]n

performing its gatekeeping function, and, in particular, in deciding whether an

expert’s report meets the reliability factor of a Daubert and Rule 702 analysis, the

District Court is not to weigh the evidence relied upon or determine whether it

agrees with the conclusions reached therein.”111 The Third Circuit explained that

“[t]o the contrary, the role of the District Court is simply to evaluate whether the

methodology utilized by the expert is reliable, i.e., whether, when correctly

employed, that methodology leads to testimony helpful to the trier of fact.”112 As

such, when an expert’s testimony is “contradicted by other evidence, . . . the

existence of [such] conflicting evidence [is] not a basis on which to exclude [the

108 Id.

109 Fed. R. Evid. 702(a).

110 Fed. R. Evid. 702 advisory committee’s notes (emphasis added).

111 Walker v. Gordon, 46 Fed. Appx. 691, 695 (3d Cir. 2002).

expert’s] testimony.”113 The proper means for exploring disputed facts is on cross

examination, as “[d]eterminations regarding the weight to be accorded, and the

sufficiency of, the evidence relied upon by the proffered expert, are within the sole

province of the [trial of fact].”114

Here, UGI argues that Rothman “grossly exaggerated the impact of the very

existence of the pipeline on market value” because he “misconstrued” language in

the Complaint as “prohibit[ing] vehicle passage or parking above the underground

pipeline” and thus reached an incorrect conclusion about the potential use of the

“sharply sloped land” located southwest of the pipeline on the Pontius property.115

UGI further contests the factual validity of Rothman’s opinion that the “risk that a

land development/stormwater management plan would fail to obtain approval”

may “devalue[]” the Property’s “development potential,” and asserts that Rothman

miscalculated the area for a potential building on the property.116

These arguments concern only the sufficiency of the evidence Rothman

relied on (and the conclusions drawn therefrom), and as such, are not valid bases

for excluding Rothman’s testimony or reports. Although UGI believes that

Rothman ignores “the actual conditions of the easement,”117 the question of how

the easement prohibiting use of the “permanent right of way or any part thereof for

113 ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 290 (3d Cir. 2012).

114 Walker, 46 Fed. Appx. at 695.

115 Doc. 143 at 13–18.

116 Id. at 18–20.

a road”118 affects the landowner’s use of the Pontius property—and therefore

decreases the value of the property—remains an open question.119 The Court, as

the trier of fact, will ultimately have to resolve this factual dispute, but the mere

existence of this disputed fact does not render Rothman’s related opinions

inadmissible.120 Likewise, UGI’s objections to Rothman’s conclusions regarding

approval of any land development/stormwater management plan and the available

building space on the Property are factual issues that go to the weight, not the

admissibility, of Rothman’s expert opinions.121

The Court finds that Pontius successfully established that Rothman is

qualified to opine on the pre- and post-taking value of the Pontius property, and

that Rothman’s opinions are sufficiently reliable and applicable to the matter at

hand. Therefore, UGI’s motion in limine to exclude Rothman’s expert testimony

and reports is denied.

B. UGI’s Expert: Matthew S. Krauser

In an interesting role-reversal, Pontius asks the Court to exclude UGI’s

expert, Matthew S. Krauser, based solely on the same factual dispute raised in

118 Doc. 1 ¶ 1(i).

119 UGI notes that this “language of the original complaint was subsequently amended (Doc. 138)

pursuant to Fed. R. Civ. ¶. 71.1(f) to remove the specific wording that [Rothman] has

misconstrued.” Doc. 143 at 14. However, the Court rejected UGI’s attempt to unilaterally

rescind this and other easement rights by amending its Complaint. See Doc. 160; Doc. 161. As

such, the original Complaint remains the operative complaint in this case, and the disputed

language is recognized as part of the easement UGI obtained on August 2, 2016. Id.

120 See Walker, 46 Fed. Appx. at 695–96.

UGI’s motion in limine. But, again, an expert’s reliance on disputed facts does not

render his testimony and reports inadmissible.122

As with UGI and Rothman, Pontius does not contest Krauser’s qualifications

to offer expert testimony on the pre- and post-taking value of the Pontius

property,123 and any attempt to do so would be futile. The Court finds that Krauser

is abundantly qualified to opine on this subject.124 Instead, Pontius challenges the

reliability of Krauser’s valuation on two related grounds: (1) Krauser’s opinion is

predicated on his understanding that the easement area can still be used for a

driveway or for vehicle parking125; and (2) Krauser did not conduct a proper

“before and after” appraisal because his post-taking valuation of the Pontius

property assessed only the “direct damages associated with the property physically

taken.”126 The Court does not find either a valid basis for excluding Krauser’s

expert testimony and reports.

First, Pontius’s objection based on the facts Krauser relied on is the mirror

image of UGI’s objection to Rothman. As discussed, the parties disagree about the

meaning and effect of the easement language in the Complaint prohibiting the “use

122 Id.

123 The parties stipulated that Krauser “is a qualified Real Estate Valuation Expert.” Doc. 167 ¶

12.

124 As noted, Krauser is a certified general appraiser with 26 years of experience and multiple

commendations and designations from reputable organizations in the appraisal community.

See Doc. 145-1, Appx. 1, Add. C.

125 Doc. 145 at 9–15.

[of] said permanent right of way or any part thereof for a road.”127 Pontius believes

this language effectively prohibits the landowner from permitting vehicle traffic or

parking above the pipeline.128 UGI interprets this language more narrowly as

prohibiting only a “highway”; it does not prevent the property owner from using

the easement area as a driveway or parking lot.129 Pontius’s expert, Rothman,

accepted Pontius’s interpretation of this provision.130 UGI’s expert, Krauser,

accepted UGI’s interpretation.131 This is a factual dispute for the trier of fact to

resolve, not a reason to exclude expert testimony.132

Second, Pontius mischaracterizes the methodology Krauser employed.

Pontius argues that Krauser conducted a “strip appraisal”—that is, “an appraisal of

only the land taken without a sincere attempt to determine harm to the remainder

property”—“disguised as a ‘before and after’ appraisal.”133 That is not true. As

explained, Krauser analyzed the highest and best use of the Pontius property both

before and after the taking and found that “the description of the property is

essentially the same before and after the acquisition of the new easement.”134 He

127 Doc. 1 ¶ 1(i).

128 Doc. 145 at 11–15.

129 Doc. 146 at 11.

130 Doc. 143-2, Appx. Tab 1 at 45.

131 Doc. 145-1, Appx. 1 at 34.

132 See Walker, 46 Fed. Appx. at 695–96.

133 Doc. 145 at 21, 21 n.1.

therefore concluded that “the best way to estimate the impact of the easement [was

to] focus on the market value of the underlying land at the Pontius property.”135

Again, the dispute here is a factual one. Because Krauser accepted that

UGI’s easements do not prevent vehicle traffic and parking above the pipeline, he

found that the “description” of the property effectively remained the same.136

Pontius may disagree with the factual assumptions underlying Krauser’s

methodology, but that does not render Krauser expert opinions inadmissible.137

IV. CONCLUSION

Both parties successfully established that their appraisal experts are qualified

to opine on the pre- and post-taking value of the Pontius property, and that their

opinions are sufficiently reliable and connected to the issue at hand. The parallel

motions in limine to exclude the experts’ testimony and reports are premised solely

on disputes over the facts the experts relied on. But an expert’s reliance on

135 Id.

136 Id.

137 Pontius also argues that Krauser’s report “definitely should not be acceptable to a Court of

Law” because Krauser “fail[ed] to value the improvements” on the Pontius property. Doc. 145

at 22. But Pontius provides no explanation or legal support for why he believes that Krauser’s

decision not to appraise the existing buildings on the property constitutes a “substantial error

or omission that significantly affects his or her opinion or conclusion.” Id. (citing Uniform

Standards of Appraisal Practice, Standard 3–1). That’s probably for the best, as this criticism

applies equally to Pontius’s expert, Rothman. Indeed, neither Rothman nor Krauser attempt to

quantify the effect the existing structures have on the property’s pre-taking value, and both

conclude that the highest and best use of the property can be obtained only by demolishing

those buildings. See Doc. 143-2, Appx. Tab 1 at 41 (Rothman: “The value of the property for

commercial use in its ‘before’ condition would be enhanced by demolition of the existing

buildings.”); accord Doc. 145-1, Appx. 1 at 37 (Krauser: “The highest and best use is for the

improvements to be razed and a new commercial building to be developed.”). The Court

disputed facts affects only the weight, not the admissibility, of his opinions.

Therefore, the motions in limine are denied.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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