“The law is well-established that ‘[a] trial court is vested with wide discretion in deciding whether to allow the admission of expert testimony into evidence, and is not subject to reversal absent a clear abuse of discretion.’ Daddona v. Thind, 891 A.2d 786, 805 (Pa. Cmwlth. 2006).”
How later courts described this case
- “The law is well-established that ‘[a] trial court is vested with wide discretion in deciding whether to allow the admission of expert testimony into evidence, and is not subject to reversal absent a clear abuse of discretion.’ Daddona v. Thind, 891 A.2d 786, 805 (Pa. Cmwlth. 2006).”
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
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 : No. 1131 C.D. 2017
Commission : Argued: March 8, 2018
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION BY
JUDGE COVEY FILED: April 10, 2018
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
1
The Sale Agreement provided:
[T]he Purchaser shall have the absolute right to perform such tests,
studies and investigations as it deems appropriate in its sole discretion
to determine the feasibility of developing the [P]roperty for a hotel.
In the event the Purchaser, in its sole discretion determines for any
reason that development of the [P]roperty as aforesaid is not feasible,
the Purchaser shall within the one hundred eighty (180)[-]day period
notify Seller in writing of its decision, and in that event this
Agreement shall become null and void and the Purchaser shall receive
a refund of the deposit with interest.
Reproduced Record at 332a.
2
Section 703 of the Eminent Domain Code provides:
2
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
Fair market value shall be the price which would be agreed to by a
willing and informed seller and buyer, taking into consideration but
not limited to the following factors:
(1) The present use of the property and its value for that use.
(2) The highest and best reasonably available use of the property and
its value for that use.
(3) The machinery, equipment and fixtures forming part of the real
estate taken.
(4) Other factors as to which evidence may be offered as provided by
Chapter 11 (relating to evidence).
26 Pa.C.S. § 703. The Pennsylvania Supreme Court has ruled: “There are . . . two requirements . . .
for proving highest and best use. First, the condemnee must show the physical adaptability of the
land to such a use, and second it must be demonstrated that this use is needed in the area.” Pa. Gas
& Water Co. v. Pa. Tpk. Comm’n, 236 A.2d 112, 116 (Pa. 1967).
3
Because the Commission has not argued the zoning issue in this appeal, this Court does not
address it herein. See Commission Amended Br. at 4 (“In this [b]rief, the [Commission] will focus
exclusively on a single error of law, the most glaring error occurring at trial – the admission of a
hearsay affidavit . . . in support of an absolutely critical element of [its] case: whether there was . . .
adequate access . . . .”).
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]
4
The Bonner Affidavit states:
1. I have been employed as Vice President and General Counsel of
Greenwood Racing, Inc., the owner and operator of [Parx Casino] in
Bensalem, Pennsylvania, from June 2006 to the present. I am also a
member of the Board of Directors of Greenwood Racing, Inc.
2. In that capacity, I have represented related entities, including
Keystone Turf Club, Inc. and Bensalem Racing Association,
regarding the development of the [Parx Casino] property. This
representation has included real estate transactions.
3. I am taking this affidavit to supplement and further explain the
subjects contained in the affidavit I signed on September 4, 2008.
4. On October 28, 2008, Keystone Turf Club, Inc. and Bensalem
Racing Association sold a portion of their property [(Parx Casino
parcel)] to the [Commission] which was located adjacent to . . . [the
Property] . . . .
5. It is my understanding that the [Commission] filed a declaration
of taking acquiring the [Property] on April 27, 2007.
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.
6. As set forth in my September 4, 2008 affidavit, prior to [the
Commission’s] acquisition of the above properties, [Lewis] Tarlini
approached Keystone Turf Club, Inc. regarding obtaining a 60[-]foot
wide driveway easement.
7. Had [the Commission] not acquired the above properties, it is
probable for a number of reasons that [the Tarlinis] would have
been able to acquire a driveway easement over the Parx [Casino
parcel] at a fair and mutually agreed upon price to be used for a
commercial development.
Reproduced Record at 345a-346a (emphasis added).
5
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.
6
[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
5
The Commission did not depose Bonner or subpoena him to testify at trial.
7
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 understanding, you may show them the [Bonner
A]ffidavit.
R.R. at 103a-105a. Kennedy then testified that the Bonner Affidavit confirmed his
opinion that the Tarlinis could have obtained a driveway easement from Parx Casino.
At Tarlinis’ Counsel’s direction, Kennedy read portions of the Bonner Affidavit and
then stated that he relied upon it, and as an expert, he typically relied upon similar
information in reaching his conclusions.
On February 15, 2017, the jury returned a $2,300,000.00 verdict in the
Tarlinis’ favor. On February 24, 2017, the Commission filed the Motion. On June
16, 2017, the trial court denied the Commission’s Motion, and on July 12, 2017,
entered judgment in the Tarlinis’ favor. The Commission appealed to this Court.6
The law is well-established that “[a] trial court is vested with wide
discretion in deciding whether to allow the admission of expert testimony into
evidence, and is not subject to reversal absent a clear abuse of discretion.” Daddona
v. Thind, 891 A.2d 786, 805 (Pa. Cmwlth. 2006). In its Opinion pursuant to
6
“This Court’s scope of review of the trial court’s ruling on post[-]trial motions is limited.
In general this Court will not disturb the trial court’s ruling unless the court manifestly abused its
discretion or committed an error of law that affected the outcome of the case.” Lower Makefield
Twp. v. Lands of Dalgewicz, 4 A.3d 1114, 1116 n.2 (Pa. Cmwlth. 2010), aff’d, 67 A.3d 772 (Pa.
2013).
8
Pennsylvania Rule of Appellate Procedure 1925(a) (1925(a) Opinion), the trial court
explained its rationale for admitting the Bonner Affidavit into evidence:
Despite falling under the definition of ‘hearsay,’ evidence
may be admissible as the basis of an expert’s opinion [under
Pennsylvania Rule of Evidence (Rule) 703.]
....
Additionally, in an eminent domain case, the standard for
the admission of evidence is more lenient than for other
cases. The Judicial Code provides that evidence in eminent
domain matters are governed by the Eminent Domain Code
[(Code)] provision. [42] Pa.C.S.[] § 6121. The standard[]
states:
A qualified valuation expert may, on direct or
cross-examination, state any or all facts and
data which the expert considered in arriving at
an opinion, whether or not [t]he expert has
personal knowledge of the facts and data[,] and
a statement of [the] facts and [data and] the
sources of information shall be subject to
impeachment and rebuttal[.]
26 Pa. C.S.[] § 1105(1). The [Commission] was aware of
the [Bonner] Affidavit prior to trial and it made no attempt
to impeach or rebut its content. [] Kennedy testified that the
Bonner Affidavit was the type of information that he
typically relies upon. [] Kennedy considered it within the
context of whether the proposed use would have access that
was ‘reasonably available.’
As provided by [Rule] 401, evidence is relevant if (a) it has
a tendency to a make a fact more or less probable than it
would be without the evidence; and (b) the fact is of
consequence in determining the action. Pa. R.E. 401. The
evidence provided by the [Bonner] Affidavit is directly
related to whether Parx Casino would have allowed an
easement over its property, therefore, it was a consequence
in determining the action and is relevant evidence.
Furthermore, the [Bonner] Affidavit came into evidence
with qualifications and instructions to the jury, which were
not objected to nor have they since been challenged. This
9
[trial c]ourt found that the [Bonner] Affidavit was properly
admitted as one of the basis [sic] of an expert’s opinion and
was relevant to the subject matter before the [trial c]ourt.
1925(a) Opinion at 8-9 (citation and footnote omitted).
The Commission argues that the trial court improperly admitted the
Bonner Affidavit. Specifically, the Commission contends that the trial court failed to
make a prerequisite finding that a valuation expert would reasonably rely upon an
affidavit like the Bonner Affidavit.7 The Commission further asserts that the Bonner
Affidavit contained “remarkably vague [] assurances that access would ‘probably’ be
provided at a ‘fair and mutually agreed upon price’ ‘for a number of reasons[.]’”
Commission Amended Br. at 12 (quoting Bonner Affidavit, R.R. at 346a) (emphasis
omitted). As it argued to the trial court, the Commission complains that the Bonner
Affidavit “doesn’t say anything,” Commission Amended Br. at 12 (quoting R.R. at
99a-100a); thus, it was unreasonable for the Tarlinis’ Expert to rely on it, and it was
error for the trial court to admit it into evidence before the trial court resolved
“whether the [Bonner A]ffidavit had meaningful substance[.]” Commission
Amended Br. at 12.
Rule 703 provides:
An expert may base an opinion on facts or data in the case
that the expert has been made aware of or personally
observed. If experts in the particular field would
reasonably rely on those kinds of facts or data in
7
Although the Commission characterizes the issue as whether “an [a]ffidavit of [t]his [k]ind
[w]ould [r]easonably be [r]elied upon by an [e]xpert [u]nder [t]hese [c]ircumstances[,]” such
characterization obfuscates the actual issue – whether an out-of-court representation by a
neighboring land owner evidencing a willingness to grant an easement, is a fact of the kind
valuation experts would reasonably rely. Commission Amended Br. at 11 (emphasis added;
quotation marks omitted). Whether the hearsay information was verbally communicated to the
expert, contained in a letter, in an affidavit, or otherwise, assuming the communication is genuine,
the relevant inquiry pertains to the substance of the information communicated, not the manner in
which it was communicated.
10
forming an opinion on the subject, they need not be
admissible for the opinion to be admitted.
Pa.R.E. 703 (emphasis added). Further, the Comment to Rule 703 states in relevant
part:
[Rule] 703 requires that the facts or data upon which an
expert witness bases an opinion be ‘of a type reasonably
relied upon by experts in the particular field . . . .’ Whether
the facts or data satisfy this requirement is a preliminary
question to be determined by the trial court . . . .
When an expert testifies about the underlying facts and data
that support the expert’s opinion and the evidence would be
otherwise inadmissible, the trial judge upon request must, or
on the judge’s own initiative may, instruct the jury to
consider the facts and data only to explain the basis for the
expert’s opinion, and not as substantive evidence.
Comment, Pa.R.E. 703. Additionally, Rule 705 provides: “If an expert states an
opinion[,] the expert must state the facts or data on which the opinion is based.”
Pa.R.E. 705.
The Pennsylvania Superior Court has stated:
It is well-established that an expert may express an opinion
which is based on material not in evidence, including other
expert opinion [sic], where such material is of a type
customarily relied on by experts in his or her profession.
Collins v. Cooper, 746 A.2d 615, 618 (Pa. Super. 2000);
Primavera v. Celotex Corp., . . . 608 A.2d 515 ([Pa. Super.]
1992). Such material may be disclosed at trial even though
it might otherwise be hearsay . . . . Such hearsay is
admissible because the expert’s reliance on the material
provides its own indication of the material’s
trustworthiness: ‘The fact that experts reasonably and
regularly rely on this type of information merely to
practice their profession lends strong indicia of
reliability to source material, when it is presented
through a qualified expert’s eyes.’ Primavera, 608 A.2d
at 520.
Boucher v. Pa. Hosp., 831 A.2d 623, 628 (Pa. Super. 2003) (emphasis added);
11
In Primavera, our Superior Court explained:
In noting the necessity and value of permitting experts to
rely on extrajudicial reports and sources, it is important to
stress that it is actually the testifying expert’s opinion which
is being presented and which is subject to scrutiny, cross-
examination and credibility determinations. Hence, it is
often the case, as it was here, that experts are questioned
concerning whether relied-upon sources are ‘authoritative’
or generally accepted, whether the source material is truly
the type ordinarily relied on by similar experts, whether
independent or further judgment was brought to bear on
particular source material and whether the expert is
competent enough to judge the reliability of the
sources upon which he relied. These are the safeguards
which assure that the experts’ opinions are not being
offered based on inherently untrustworthy data or data
which is not commonly used by other professionals. If an
expert has made faulty assumptions or leaps of
judgment in relying on certain sources or in forming
conclusions based on those sources, these issues are the
proper subject of cross-examination.
The relative roles of jury and expert in this context have
been described as follows:
In a sense, the expert synthesizes the primary
source material -- be it hearsay or not -- into
properly admissible evidence in opinion form.
The trier of fact is then capable of judging the
credibility of the witness as it would that of
anyone else giving expert testimony. This rule
respects the functions and abilities of both the
expert witness and the trier of fact, while
assuring that the requirement of witness
confrontation is fulfilled.
United States v. Sims, 514 F.2d 147, 149 (9th Cir. 1975),
cert. denied 423 U.S. 845 . . . (1975).
As this court has indicated, the crucial point is that the
fact-finder be made aware of the bases for the expert’s
ultimate conclusions, including his partial reliance on
indirect sources. ‘The adverse party then has the
opportunity . . . to present its own countervailing facts
12
and figures and/or expert testimony to convince the
factfinder that the weight to be given to the other side’s
expert testimony should be little or none’. In re Glosser
Bros., Inc., . . . 555 A.2d 129, 142 ([Pa. Super.] 1989).
. . . . Where, as here, the expert uses several sources to
arrive at his or her opinion, and has noted the reasonable
and ordinary reliance on similar sources by experts in the
field, and has coupled this reliance with personal
observation, knowledge and experience, we conclude that
the expert’s testimony should be permitted.
Primavera, 608 A.2d at 520-21 (emphasis added).
Here, the Commission acknowledges that “[d]espite exhaustive research,
[it] has failed to find any Pennsylvania [s]tate [c]ourt appellate authority addressing”
its proposition that the trial court should have independently evaluated the Bonner
Affidavit to determine if it had meaningful substance and made such a finding.
Commission Amended Br. at 13. Instead, it points to Texas case law and federal case
law to support its argument that “[t]he reasonableness of the expert’s reliance, and, in
turn, the legal sufficiency of the substance of the affidavit was a threshold question of
law for the [trial c]ourt.” Id. Citing to Merrell Dow Pharmaceuticals, Inc. v. Havner,
953 S.W.2d 706 (Tex. 1997) and In re Paoli Railroad Yard PCB Litigation, 35 F.3d
717, 747-48 (3d Cir. 1994), the Commission asserts that it is the trial court’s
obligation to independently evaluate the reliability of the data relied upon by the
expert.
Specifically, the Commission relies on the Merrell Dow Court’s
statement:
The view that courts should not look beyond an averment
by the expert that the data underlying his or her opinion are
the type of data on which experts reasonably rely has
likewise been rejected by other courts. The underlying data
should be independently evaluated in determining if the
opinion itself is reliable. See, e.g., [Paoli], 35 F.3d [at] 747-
48 . . . .
13
Merrell Dow, 953 S.W.2d at 713. Notably, the expert testimony at issue in Merrell
Dow involved sufficiency of data supporting scientific opinion evidence.
Similarly, Paoli involved the admissibility of expert scientific opinion
evidence, wherein the Third Circuit Court of Appeals stated:
We now make clear that it is the judge who makes the
determination of reasonable reliance, and that for the judge
to make the factual determination under [Federal] Rule [of
Evidence] 104(a) that an expert is basing his or her opinion
on a type of data reasonably relied upon by experts, the
judge must conduct an independent evaluation into
reasonableness. The judge can of course take into account
the particular expert’s opinion that experts reasonably rely
on that type of data, as well as the opinions of other experts
as to its reliability, but the judge can also take into account
other factors he or she deems relevant.
Paoli, 35 F.3d at 748. Finally, the Commission points to the Third Circuit Court of
Appeals’ decision in Z.F. Meritor, LLC v. Eaton Corp., 696 F.3d 254 (3d. Cir. 2012).
Therein, the Court held:
The record amply supports the District Court’s concern that,
although [the plaintiff’s expert] was generally aware of the
circumstances under which the [revised strategic business
plan8] was created and the purposes for which it was used,
he lacked critical information that would be necessary for
[the defendant] to effectively cross-examine him. An
expert’s ‘lack of familiarity with the methods and the
reasons underlying [someone else’s] projections virtually
preclude[s] any assessment of the validity of the projections
through cross-examination.’ TK-7 Corp. v. Estate of
Barbouti, 993 F.2d 722, 732 (10th Cir. 1993)[.]
Z.F. Meritor, 696 F.3d at 293.
The Commission argues that “[t]he parallels [between Z.F. Meritor and
the instant] case are striking[.]” Commission Amended Br. at 16. However, they are
8
“The [revised strategic business plan] contained a five-year forecast of profit and loss
estimates based on estimated unit sales, unit prices, manufacturing costs, operating expenses, and
other considerations.” Z.F. Meritor, 696 F.3d at 291 n.23.
14
not. The representations in the Bonner Affidavit did not consist of scientific or
complex mathematical data, or methodologies such as that in the revised strategic
business plan at issue in Z.F. Meritor. Rather, the Bonner Affidavit simply
represented Parx Casino’s position on its willingness to grant an easement.
Moreover, “courts of our Commonwealth are not bound by decisions of federal courts
inferior to the U[nited] S[tates] Supreme Court.” In re Stevenson, 40 A.3d 1212,
1216 (Pa. 2012). Nor are Pennsylvania Courts bound by decisions of other states’
courts. Eckman v. Erie Ins. Exch., 21 A.3d 1203 (Pa. Super. 2011).
Recently, in Commonwealth v. Watkins, 108 A.3d 692 (Pa. 2014), the
Pennsylvania Supreme Court held that the Post Conviction Relief Act (PCRA) court
did not abuse its discretion when it declined to admit two lay affidavits concerning
Watkins’ participation in “KIDS,” a program for troubled teens (KIDS program), and
declined to admit the Watkins’ expert’s testimony based thereon. Therein, Watkins’
expert (Dr. Woods), a psychiatrist who had never examined or even spoken to
Watkins, based his opinion of Watkins’ competence solely on his reviews of
Watkins’ medical records and the affidavits. The first affidavit, which was unsigned
and undated, was purportedly by an individual identified as a staff person from the
KIDS program during Watkins’ involvement. The affidavit was accompanied by an
email from the individual purporting to have read and agreed with the affidavit. The
second affidavit was from an individual explaining that he had participated in the
KIDS program with Watkins, and describing his and Watkins’ painful emotional
experiences and Watkins’ physical and emotional state while in the KIDS program.
The Pennsylvania Supreme Court explained:
We cannot find that the PCRA court abused its discretion in
this regard. [Watkins] has made no showing that experts in
Dr. Woods’s field of psychiatry would form an opinion in
reasonable reliance on statements of ‘facts’ prepared for
litigation; untested for credibility or accuracy; and
15
authored by lay persons with unknown qualifications,
experience, and motivation to whom the experts have
never spoken. Dr. Woods’[] opinion testimony based on
the statements would have no value unless the statements
themselves were reliable and credible. Notably, [Watkins]
could have called the declarants to testify, allowing them to
be cross-examined and thereby tested on the reliability,
accuracy, and credibility of their declarations. Indeed, the
PCRA court explicitly asked PCRA counsel if the
declarants were going to testify, and counsel’s answer was
‘no.’ The PCRA court did not abuse its discretion in
declining to allow Dr. Woods to give opinion testimony
based on the out-of-court statements in the [affidavits].
Watkins, 108 A.3d at 737 (emphasis added). In contrast to Watkins, the trial court in
the instant case permitted the expert testimony, and its decision is entitled to
deference absent clear abuse of discretion. Further, the out-of-court statement was
made by the Vice President and General Counsel of Parx Casino’s owner and
operator, an attorney, and an individual whom the Tarlinis’ Experts knew, and it
expressed Parx Casino’s willingness to grant an easement. Thus, the facts at bar
differ significantly from those in Watkins.
The law is well-established that an expert may rely on hearsay
statements in reaching an opinion. See Boucher; Luzerne C[ty.] Flood Prot. Auth. v.
Reilly, 825 A.2d 779 (Pa. Cmwlth. 2003); see also In re Adoption of R.K.Y., 72 A.3d
669, 677 (Pa. Super. 2013) (holding that the trial court properly admitted children’s
out-of-court statements into evidence where child psychology expert “testified that
reliance on interviews when preparing a psycho-sexual evaluation, including
interviews conducted by colleagues, is ‘common practice in our field,’ . . . thus
satisfying the basic prerequisites for admission under Rules 703 and 705”).
Accordingly, precluding the Tarlinis’ Experts’ testimony because the Bonner
Affidavit is hearsay and Bonner was not subject to cross-examination, under these
circumstances, does not comport with precedential Commonwealth law.
16
Contrary to the Commission’s position, the Bonner Affidavit does
communicate facts. The Vice President and General Counsel of Parx Casino’s owner
and operator attested under oath that Parx Casino did not intend to use the proposed
easement area and represented that Parx Casino would not have been opposed to
granting an easement. He further expressed in his Affidavit that Parx Casino was
willing to negotiate with the Tarlinis, and to grant an easement for a “fair and
mutually agreed upon price[.]” R.R. at 346a. An expression by a neighboring
landowner’s representative regarding the landowner’s willingness to grant an
easement permitting access to a property where such easement would permit access,
is a fact upon which a valuation expert would reasonably rely when considering
whether access would be reasonably available. Kennedy and Quinn confirmed that
they reasonably relied upon landowners’ positions on granting easements in such
circumstances, and the trial court accepted their testimony.
The Commission also takes issue with the Tarlini’s Experts’ reliance on
the Bonner Affidavit, given Bonner’s statement that “it is probable for a number of
reasons that [Lewis] Tarlini would have been able to acquire a driveway easement
over the Parx [Casino] [p]roperty at a fair and mutually agreed upon price to be used
for a commercial development.” R.R. at 346a. The Commission specifically asserts
that Kennedy’s lack of knowledge as to the “reasons” why Parx Casino would permit
the easement undermines his reliance on the Bonner Affidavit. Id. Further, it
challenges Kennedy’s reliance on the Bonner Affidavit because Kennedy did not
know what Bonner meant by his use of the phrase, “a fair and mutually agreed upon
price . . . .” Id. Notably, Kennedy’s lack of knowledge regarding Parx Casino’s
motive for granting an easement is irrelevant. A buyer is not required to know a
seller’s motives for selling. Thus, the Tarlinis’ Experts were not required to know
why Parx Casino would be willing to grant an easement. Kennedy’s inability to
provide such justification does not undermine the Bonner Affidavit’s representation
17
that the Tarlinis would have been able to obtain an easement. Further, price
specificity was not required in the Bonner Affidavit, as it would be unreasonable to
expect a land owner whose property is subject to condemnation to expend a
neighboring landowner’s time and resources negotiating an unnecessary easement.
Notwithstanding, as the Pennsylvania Superior Court recognized in Primavera, “[i]f
an expert has made faulty assumptions or leaps of judgment in relying on certain
sources or in forming conclusions based on those sources, these issues are the
proper subject of cross-examination.” Id. at 521 (emphasis added). Here, the
Commission had the opportunity to cross-examine the Tarlinis’ Experts.
Importantly, the Tarlinis’ Experts’ opinions regarding Property access
were not based solely on the Bonner Affidavit. Kennedy did not rely exclusively on
the Bonner Affidavit to conclude that access to the Property would be reasonably
available. Kennedy explained that most of the development projects with which he
has been involved have required some kind of easement from a neighboring property.
Kennedy further stated, “[i]t’s actually unusual if no easements are required.” R.R. at
92a. Kennedy testified:
I looked at the [P]roperty to see if . . . Parx Casino[] was
utilizing that area. [It was] not utilizing that area.
Furthermore, the location of a driveway would not infringe
on [its] main operation and use of [its] property, which was
the casino and racetrack business. It would not affect that
business at all.
The township is trying to encourage further development of
that district, that area, that property[.]
R.R. at 94a. Thus, it is reasonable that Kennedy relied upon the statements in the
Bonner Affidavit, in that they were consistent with Kennedy’s personal observations,
and they added additional information upon which Kennedy based his conclusion that
access was reasonably available.
18
Further, Quinn testified that he had appraised the Parx Casino racetrack
several times and knew Bonner. He explained that the portion of the Parx Casino
property that would have accommodated the driveway had been wooded,
undeveloped and unused since the 1980s. He believed it was reasonably probable
that a buyer or developer could have obtained a driveway easement from Parx Casino
“primarily based on [his] conversations with [] Bonner.” R.R. at 181a. He stated that
the Bonner Affidavit was consistent with his understanding that Parx Casino would
likely have granted the Tarlinis an easement.
Moreover, the Commission objects to the trial court’s suggestion that
Section 1105 of the Code’s more lenient admissibility standard permitted the use of
the Bonner Affidavit. The Pennsylvania Supreme Court has explained:
In 1964, in response to such precedent, the General
Assembly made changes to the [Code] which substantially
broadened the scope of admissible evidence, thus easing
evidentiary restrictions for determining fair market value of
a property. See 26 Pa.C.S. § 1105(1), Joint State
Government Comm[’]n Comments - 1964. Specifically,
[Section] 1105(1) [of the Code] provides a qualified
valuation expert may ‘state any or all facts and data which
the expert considered in arriving at an opinion[.]’ 26
Pa.C.S. § 1105(1) (emphasis added). Further, [Section]
1105(2) [of the Code] provides a qualified valuation expert
may ‘testify in detail as to the valuation of the property on a
comparable market value, reproduction cost or
capitalization basis[.]’ [26 Pa.C.S.] § 1105(2). The General
Assembly makes clear this section is intended ‘to change
existing law which severely restricts the testimony of the
expert witness on the ground that ‘collateral issues’ are
introduced.’ Id. . . . , Joint State Government Comm[’]n
Comments - 1964. The General Assembly’s liberalization
of the [Code] explicitly permits testimony that may
introduce ‘collateral issues’. . . .
Lower Makefield Twp. v. Lands of Dalgewicz, 67 A.3d 772, 775-76 (Pa. 2013)
(footnotes omitted). The Court further stated:
19
Despite the Code’s liberalization of the receipt of expert
evidence concerning property value, the 1964 legislation
did not purport to override all evidentiary restrictions on
expert testimony. Those limitations, which are codified in
the Rules of Evidence this Court adopted in 1998, include
certain restrictions pertaining to expert testimony. Under
Rule 703, for example, the underlying facts or data relied on
by the expert ‘need not be admissible in evidence.’ Pa.R.E.
703. Additionally, under Rule 705, ‘[t]he salient facts
relied upon as the basis of the expert opinion must be in the
record so that the jury may evaluate the opinion.’ Pa.R.E.
705, Official Comment (citing Commonwealth v. Rounds, . .
. 542 A.2d 997, 999 (Pa. 1988) (‘At the heart of any
analysis is the veracity of the facts upon which the
[expert’s] conclusion is based. Without the facts, a jury
cannot make any determination as to validity of the expert’s
opinion.’)).
Lower Makefield, 67 A.3d at 776 n.5. Such expert testimony under the Code “must
be subject to the limitation that neither an expert witness nor the condemnee . . . can
testify to facts and data which are not judicially relevant and competent.” Scavo v.
Dep’t of Highways, 266 A.2d 759, 762 (Pa. 1970).
In the instant matter, the trial court clearly explained:
The evidence provided by the [Bonner] Affidavit is directly
related to whether Parx Casino would have allowed an
easement over its property, therefore, it was a consequence
in determining the action and is relevant evidence.
Furthermore, the [Bonner] Affidavit came into evidence
with qualifications and instructions to the jury, which were
not objected to nor have they since been challenged. This
[c]ourt found that the [Bonner] Affidavit was properly
admitted as one of the basis of an expert’s opinion and was
relevant to the subject matter before the [c]ourt.
1925(a) Opinion at 9 (emphasis added; footnote omitted).9 For these reasons and
based on the record evidence, this Court concludes that the trial court did not abuse
9
The Commission also notes that the Bonner Affidavit was introduced through a land
planner (Kennedy) rather than the Tarlinis’ appraiser (Quinn). The Commission contends that since
Section 1105 of the Code applies to “qualified valuation expert[s,]” that Section is inapplicable
20
its discretion by permitting Kennedy to read the Bonner Affidavit during his
testimony.
For all of the above reasons, the trial court’s order is affirmed.
__________________________
ANNE E. COVEY, Judge
here. 26 Pa.C.S. § 1105. However, “[t]he determination of whether a witness is a ‘qualified
valuation expert’ is a matter within the sound discretion of the trial court.” McGaffic v.
Redevelopment Auth., 732 A.2d 663, 672 (Pa. Cmwlth. 1999). In the instant case, the trial court
repeatedly referred to Kennedy as an expert qualified to testify as to the feasibility of the Tarlinis’
claimed highest and best use of the Property. There being no basis on which this Court could
declare that the trial court abused its discretion in reaching that conclusion, the Commission’s
argument is without merit.
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
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 : No. 1131 C.D. 2017
Commission :
ORDER
AND NOW, this 10th day of April, 2018, the Bucks County Common
Pleas Court’s June 16, 2017 order is affirmed.
___________________________
ANNE E. COVEY, Judge