The opinion
SENIOR JUDGE KELLEY,
CONCURRING AND DISSENTING.
I concur in the result only, and respectfully dissent to the Majority’s analysis of the narrow issue of the evidentiary ruling under Section 705 of the Eminent Domain Code 1 (Code), 26 P.S. § 1-705. The Majority’s opinion is founded on precedents that neither considered nor applied the broadened evidentiary scope of the Code, it finds prejudicial value in the proposed testimony that is not founded in the record, and does not acknowledge both the probative value of the excluded testimony and the precedents of this Court finding relevance and probative value in title marketability evidence in eminent domain proceedings.
The Majority bases their reasoning for the exclusion of the testimony at issue upon the precedential foundation of Primavera v. Celotex Corp. 2 Primavera, however, was a products liability suit, and the testimony at issue in that case was not subject to the expanded evidentiary scope afforded by Section 705 of the Code. In its analysis of the excluded testimony, and in its use of Primavera as persuasive precedent, the Majority looks to the similarities between Section 705 of the Code and Pa. R.E. No. 705 for guidance as to the scope of admissible expert testimony. This reli-anee ignores the expressly articulated intention of the General Assembly, in enacting Section 705 of the Code, to “change and broaden existing law which unduly limits the examination and cross examination of an expert witness” in eminent domain proceedings. 3 It is this express legislative intent to broaden the admissible scope of testimony in eminent domain proceedings that distinguishes Primavera, and Pa.R.E. No. 705, and dictates that only very limited persuasive value, if any, should be accorded to these principles in the instant matter. It is not the similarities between Section 705 of the Code and Pa.R.E. No. 705 that should guide an eminent domain admissibility analysis, but the differences.
It is unarguable that Pa.R.E. No. 705 limits and narrows the scope of admissible expert evidence. It is equally unarguable that Section 705 of the Code, by its very terms, was expressly intended to broaden that scope. An analysis structured primarily on Pa.R.E. No. 705, or on a precedent 4 such as Primavera that did not deal with proceedings under the Code, affords no deference to the General Assembly’s express intent in enacting Section 705 of the Code, and renders that legislative enactment moot by ignoring its stated intent.
I am equally perplexed by the Majority’s application of the “overarching” application of Pa.R.E. No. 403, which mandates a balancing of the probative value against, inter alia, the prejudicial danger of the offered evidence. There is no evidence of record, or even an allegation, that title marketabil *788 ity evidence would have in any way been prejudicial in the proceedings below. I cannot find any substantial prejudicial value in Moyer’s recounting of his application of foundational legal data, especially when viewed against the backdrop of that legal data’s entry before a Judge and opposing counsel who are both learned in the law. Such an assurance of the accuracy of the legal data sought to be admitted would clearly outweigh any potential confusion that the data could engender, and subjects that data to external indicia of reliability and accuracy.
Additionally, I can conceive of little evidence of more probative value than the excluded testimony. While the Majority asserts that the record does not reflect that a real estate appraisal expert regularly relies upon title marketability information in formulating his opinion of the appraisal value of a commercial property, I find that statement contradictory to common sense, the record, and the law. By definition, there is little data more relevant to a commercial property’s valuation than that property’s marketability, legal or otherwise. Further, it is clear from Moyer’s testimony that the subject property was under a contract for sale, which sale was alleged to have fallen through due in part to the easement in question. Reproduced Record at 13a. Additionally, and most tellingly, it is well established that expert opinion of title marketability is permissible in eminent domain proceedings. See, e.g., Department of Transportation v. Kemp, 100 Pa.Cmwlth. 436 , 515 A.2d 68 (1986) (where an entity clothed in the power of eminent domain exercises that power with resulting injuries to a private party, a lack of marketability of the title to private property is a compensable injury); Capece v. City of Philadelphia, 123 Pa.Cmwlth. 86 , 552 A.2d 1147 (1989) (in proceedings under the Eminent Domain Code, the decrease or lack of marketability of title to lands affected may state a cause of action for consequential damages under the Code).
Finally, I find the Majority’s logic circular in their argument that the inadmissibility of the title marketability evidence is supported by its tangential relation to the actual damages testimony that was admitted from Moyer. The absence of title marketability evidence in Moyer’s admitted testimony should not be used as support for the exclusion of that very testimony.
In the absence of any substantial proffer as to the testimony sought to be admitted, as saliently noted by the Majority in footnote 7, I concur with the Majority’s result, but dissent in regards to their reasoning on admissibility under the Code.
. Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. §§ 1-101 — 1-903.
. 415 Pa.Super. 41 , 608 A.2d 515 (1992), petition for allowance of appeal denied, 533 Pa. 641 , 622 A.2d 1374 (1993).
. 26 P.S. § 1-705, Comment, Subdivision (1).
. In addition to finding no precedential value in Primavera in relation to evidentiary issues in eminent domain proceedings, I disagree with the Majority's citation to Beaumont v. ETL Services, Inc., 761 A.2d 166 (Pa.Super.2000), another products liability case that was not decided under the broadened eviden-tiary scope of the Code. I find Beaumont to be equally inapplicable to the facts sub judice.