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Jacob and Taylor's Profile
Hello there, nice to meet you!
We're a married couple from the hills of West Virginia and are constantly traveling in search of great finds and good times.
We've met so many interesting people and learned so much about the past through collecting & selling vintage, it's certainly turned into a passion for both of us.
We love putting something vintage back into use and giving the item a sense of purpose again.
Thanks for stopping by!
- Born on July 22
- Joined March 22, 2012
- Jacob and Taylor
- Indianapolis, IN, United States


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VirtueMart 2 - Eurobank payment gateway
This Joomla - VirtueMart 2 payment module is designed for making credit card payments through Eurobank (Greece). This payment gateway uses the redirect method where the user is redirected to the processing site (Eurobank) to make the actual payment. After payment verification, Eurobank notifies the merchant's e-commerce site and returns the customer back to it. This process is transparent for the customer. The merchant can then connect to his Eurobank backoffice to administer his payments. This payment module supports free and interest bearing instalments.Visit publisher site: VirtueMart 2 - Eurobank payment gateway
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March 24, 2010
EDUARDO NUNEZ, PLAINTIFF,v.F. RAMIREZ, DEFENDANT.
The matters before the Court are Defendant's Motion to Dismiss Count 1 of the Complaint (Doc. # 6) and the Report and Recommendation (Doc. # 10) filed by the Magistrate Judge.
On February 26, 2009, Plaintiff, a state prisoner proceeding pro se, initiated this action by filing the complaint. (Doc. # 1). Plaintiff's complaint alleges two claims against Defendant: (1) free speech; and (2) freedom from cruel and unusual punishment. Id. at 3-5. Plaintiff filed a Motion to Proceed In Forma Pauperis ("IFP") along with his complaint. (Doc. # 2). On April 6, 2009, the Court granted Plaintiff's Motion to Proceed IFP and performed the sua sponte screening required by the Prison Litigation Reform Act, 28 U.S.C. § 1915. (Doc. # 3).
Plaintiff alleges that he was confronted by Defendant and four other correctional officers while he was discussing a job change with two other inmates in Prison Yard "A" at Centinela State Prison. (Doc. # 1 at 3). Plaintiff alleges that Defendant "began cursing, stating 'You (mother fxxxxxx) are stupid, we are looking right at you and you want to keep drinking.'" Id. Plaintiff alleges that, in response, he "simply suggested 'If you saw who was drinking, why don't you address that person instead of disrespecting everybody.'" Id. Defendant allegedly responded "You have a big smart mouth, but are stupid." Id. Plaintiff alleges that he then told Defendant that "[Defendant] was the stupid one and that's why he had that job." Id. Plaintiff alleges that another prison official, Sergeant Centeno, told the group of inmates that "we were only going to come talk to you, but because of him (pointing at me) you are all getting stripped out." Id. However, Plaintiff alleges that Defendant only performed an unclothed body search on Plaintiff and did not search the other inmates who were standing in the yard. Id.
Plaintiff alleges that after he complied with the search, Sergeant Centeno ordered him to "cuff up" so that Defendant could handcuff him. Id. Plaintiff alleges that after he complied, Sergeant Centeno ordered Defendant to take Plaintiff to the program office. Id. Plaintiff alleges that Defendant began to walk with Plaintiff and then asked Sergeant Centeno, "To the program office?" Id. Sergeant Centeno replied "Yes." Id. Defendant asked Sergeant Centeno again "To the program office?" Id. Plaintiff alleges that he did not hear the Sergeant respond. Plaintiff alleges that Defendant asked Sergeant Centeno a third time "To the program office?" and Plaintiff said "Ya mamasela." Id.
Plaintiff alleges that Defendant looked over his shoulder and yelled "Do not strike me! Get down, get down!" and pushed Plaintiff to the ground. Id. Plaintiff alleges "I turned my face to the right so that my nose would avoid the impact" and "crossed my legs to show any witness I was not resisting." Id. Plaintiff alleges Defendant continued "grinding my face to the floor" until another prison official, Lieutenant Caldwell arrived at the scene and ordered those present to put on latex gloves because Plaintiff was bleeding from the mouth. Id. at 4. Plaintiff alleges that he was cleaned up, and after a medical evaluation, gave a videotaped statement accusing Defendant of "police brutality." Id.
Plaintiff alleges that he exhausted his administrative remedies:
First I wrote a staff complaint. It was granted in part. Not satisfied, I sent it to Sacramento 3rd level - it was denied but it was not returned to me. I was found guilty of the Rule Violation Report. On appeal, the Rule Violation Report got reissued to be reheard (3 times). On the fourth time, the charges were dismissed. I was released from Administrative Segregation after 8 months of punishment.
Id. at 7.
On July 28, 2009, Defendant filed his Motion to Dismiss Count 1 of the Complaint. (Doc. # 6). Defendant contends that Plaintiff has failed to state a First Amendment claim for freedom of speech or retaliation pursuant to Federal Rule of Civil Procedure 12(b)(6). Id. at 2. Defendant contends that Plaintiff has not "specified what the protected speech is" and that none of the statements Plaintiff allegedly made qualify as protected speech. (Doc. # 6-1 at 4). Defendant contends that Plaintiff "did not put forth any facts that actually allege that [Defendant] prevented [Plaintiff] from exercising his freedom of speech." Id. Defendant contends that Plaintiff has also failed to plead the elements of a viable First Amendment retaliation claim. Id. at 5. Defendant contends that Plaintiff failed to allege any facts showing Defendant "took adverse action against Plaintiff." Id. Defendant contends that his actions, specifically strip searching Plaintiff and placing Plaintiff in handcuffs, were motivated by his suspicion that the group of inmates were drinking and his concern that Plaintiff's conduct could "lead to violence." Id. Defendant contends that he was obeying the "lawful orders of a supervising officer." Id. Defendant contends Plaintiff has failed to allege facts which would show the "absence of legitimate correctional goals." Id. Defendant contends that he was enforcing California Code of Regulations Title 15, §§ 3004, 3005, and 3016 and that the Court should therefore dismiss Plaintiff's claim.
On August 24, 2009, Plaintiff filed his response in opposition to Defendant's motion. (Doc. # 8). Plaintiff contends that he alleged that his statements were protected by the First Amendment. Id. at 2. Plaintiff contends that being strip searched, handcuffed, and subject to a false accusation of assaulting a correctional officer constitute retaliation, "freezing the plaintiff's right to free speech." Id. Plaintiff contends that Defendant's assault upon him was "clearly retaliating and punishing Plaintiff for correcting Defendant on how to do his job." Id. Plaintiff contends that the fact that Defendant was ordered to "search and escort the plaintiff does not justify the Unethical and Criminal behavior Defendant RAMIREZ engaged in." Id. Plaintiff contends that he plead all of the elements of a claim for retaliation pursuant to Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).
Respondent did not file a reply.
On November 12, 2009, the Magistrate Judge issued her Report and Recommendation ("R&R") recommending that this Court grant the motion and dismiss count 1 of the complaint with prejudice. (Doc. # 10). The R&R concluded that Plaintiff "does not allege that he engaged in protected speech nor does he allege that Defendant prohibited him from exercising his free speech rights." Id. at 7. The R&R concluded that even if Plaintiff did allege that his speech was protected and that he was prevented from exercising his free speech rights, "the derogatory and challenging remarks Plaintiff directed toward Defendant cannot properly be characterized as protected speech." Id. The R&R concluded that "protests and complaints that involve a direct confrontation with prison officials" as opposed to a written grievance "enjoy limited constitutional protection because such behavior may present the danger of a disturbance." Id. at 7-8. The R&R concludes that the California Code of Regulations Title 15, § 3004(b) prohibited Plaintiff's statement because it displayed disrespect and risked "disrupt[ing] orderly operations within the institution." Id. at 8 (citing Cal. Code Regs. tit. 15, § 3004(b)). The R&R concluded that the risk was "especially acute where, as here, other inmates were present because prison officials have a strong interest in 'preserving institutional order and discipline.'" Id. (citing Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994). The R&R concluded that Plaintiff failed to state a First Amendment free speech claim. Id. at 9.
The R&R concluded that, alternatively, if Plaintiff's complaint is construed as a First Amendment claim for retaliation, it fails to allege the elements of that claim. Id. The R&R concluded that even if Plaintiff's speech is protected, he "does not adequately plead a connection between the protected statement and the Defendant's actions." Id. at 9-10. The R&R concluded that Plaintiff did not adequately allege that Defendant's actions had a chilling effect on his first amendment rights. Id. at 10. The R&R concluded that Plaintiff failed to allege that Defendant's conduct did not reasonably advance a legitimate correctional goal. Id.
The R&R recommends that this Court grant Defendant's Motion to Dismiss Count 1 of the Complaint and dismiss the free speech claims with prejudice. Id. at 10-11. The R&R concludes that amendment would be futile because Plaintiff's complaint already contains "detailed information regarding the statements that were made by Plaintiff and none of them constitute protected speech." Id. at 11.
The R&R informed the parties that objections would be due by December 3, 2009 and that any reply would be due on December 23, 2009. Id. Plaintiff filed an objection on December 1, 2009. (Doc. # 11). Defendant did not file any objections nor did he reply to Plaintiff's objection.
Plaintiff's objection contends that his statement "If you saw who was drinking, why don't you address that person instead of disrespecting everybody" is protected speech. Id. at 2. Plaintiff contends that the Magistrate Judge erred in comparing Plaintiff's statement to statements in prior cases where the prisoner swore, used abusive language, or made demonstrably false accusations. Id. (citing Lockett v. Suardini,526 F.3d 866, 874 (6th Cir. 2008) (prisoner's act of calling hearing officer a "foul and corrupted bitch" not protected speech); Smith v. Mosley, 532 F.3d 1270, 1277 (11th Cir. 2008) (prisoner's "false and insubordinate remarks" not protected speech); Garrido v. Coughlin, 716 F.Supp.98, 99-101 (S.D.N.Y. 1989) ("verbal confrontation" of officers over their treatment of another inmate not protected conduct); Franklin v. State of Oregon, 563 F.Supp.1310, 1326 (D.Or. 1983) (First Amendment does not extend to "use of expletives" directed toward a guard), aff'd in part and rev'd in part, 795 F.2d 1221 (9th Cir. 1984);Riggs v. Miller, 480 F.Supp.799, 804 (E.D.Va. 1979) ("bickering, argumentative conversation" does not rise to the "lofty position of constitutionally protected speech"); Durkin v. Taylor, 444 F.Supp.879, 881-83 (E.D.Va. 1977) (statement that "I am tired of chickenshit rules" not protected speech)). Plaintiff contends that any risk of disturbance was cause by Defendant's response to Plaintiff's speech and not by Plaintiff's speech itself. Id. Plaintiff contends that he plead all of the required elements of a First Amendment retaliation claim as enumerated by the Ninth Circuit in Rhodes. Id. at 3 (citing Rhodes, 408 F.3d at 567-68).
The duties of the district court in connection with the Report and Recommendation of a Magistrate Judge are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C § 636(b). The district judge "must make a de novo determination of those portions of the report... to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b). The district court need not review de novo those portions of a Report and Recommendation to which neither party objects. Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc).
Federal Rule of Civil Procedure 12(b)(6) permits dismissal for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Federal Rule of Civil Procedure 8(a) provides: "A pleading that states a claim for relief must contain... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
To sufficiently state a claim for relief, a complaint "does not need detailed factual allegations" but the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "[A] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (quoting Fed. R. Civ. P. 8(a)(2)). When considering a motion to dismiss, a court must accept as true all "well-pleaded factual allegations." Ashcroft v.Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1950 (2009). However, a court is not "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see, e.g., Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 683 (9th Cir. 2009) ("Plaintiffs' general statement that Wal-Mart exercised control over their day-to-day employment is a conclusion, not a factual allegation stated with any specificity. A court need not accept Plaintiffs' unwarranted conclusion in reviewing a motion to dismiss."). "In sum, for a Complaint to survive a motion to dismiss, the nonconclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quotations omitted).
A prisoner does not have the same First Amendment rights as a non-prisoner. See Bell v. Wolfish, 441 U.S. 520, 545 (1979). However, "convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison." Id. "[A] prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Pell v. Procunier, 417 U.S. 817, 822 (1974). A prisoner's First Amendment claim "must be analyzed in terms of the legitimate policies and goals of the corrections system...." Id.
In addition to directly challenging prison regulations which limit speech, a prisoner may sue for retaliation in violation of the First Amendment pursuant to 28 U.S.C. § 1983. See Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985). Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) lays out the elements of a First Amendment retaliation claim by a prisoner: "(1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal."
Due to Plaintiff's objection to the Magistrate Judge's finding that his statement "If you saw who was drinking, why don't you address that person instead of disrespecting everybody" is not protected speech, this Court conducts de novo review of that issue. Although Plaintiff contends that his speech "was neither challenging nor confrontational," Plaintiff ignores the context of his speech. Plaintiff was directly confronting a correctional officer who was attempting to enforce an indisputably valid prohibition against drinking alcohol. Such a direct, face-to-face confrontation presents a danger of a disturbance and a disruption to institutional order and discipline that a written grievance does not. See Brodheim v. Cry, 584 F.3d 1262, 1272-73 (9th Cir. 2009); Bradley v. Hall, 64 F.3d 1276, 1281 (9th Cir. 1995). The Magistrate Judge correctly concluded that Plaintiff's statements are not protected speech in the prison context, which is fatal to Plaintiff's First Amendment claim and his First Amendment retaliation claim.
Plaintiff's free speech and retaliation claims are dependent on whether his statement "If you saw who was drinking, why don't you address that person instead of disrespecting everybody" is speech protected by the First Amendment. Because the statement is not protected speech in the prison context, his free speech and retaliation claims fail regardless of whether he has alleged all of the other elements of these claims. The Court therefore declines to address Plaintiff's objections to the other conclusions of the R&R.
In addition to this initial statement, Plaintiff made two subsequent statements. First, Plaintiff called Defendant stupid. Second, Plaintiff said "Ya mamasela" while he was being escorted to the program office. Plaintiff does not object to the Magistrate Judge's determination that insulting Defendant is not protected speech, nor does he object to the Magistrate Judge's determination that his subsequent statement in Spanish does not constitute protected speech. See Doc. # 11. Because neither party objects to these conclusions, this Court need not conduct de novo review. See Wang, 416 F.3d at 1000 n. 13. The Court finds the Magistrate Judge's determination on these issue is correct.
The R&R also concluded that Plaintiff's free speech claims should be dismissed with prejudice on the grounds that amendment would be futile. (Doc. # 10 at 10-11). The R&R notes that "Plaintiff's Complaint contains detailed information regarding the statements that were made by Plaintiff and none of them constitute protected speech." Id. at 11. Neither party objected to this conclusion. The Court finds that Plaintiff has already submitted specific and detailed pleadings about all of the events that give rise to his claims and that allowing Plaintiff to amend would be futile. Plaintiff has already identified the speech that is the basis of his First Amendment claims and alleging additional facts consistent with his prior pleadings would not change the Court's ruling that the speech is not protected speech. Therefore, the Court finds that the Magistrate Judge's determination that amendment would be futile is correct.
IT IS HEREBY ORDERED THAT (1) the Report and Recommendation (Doc. # 10) is ADOPTED; and (2) Defendant's Motion to Dismiss Count 1 of the Complaint (Doc. # 6) is GRANTED. Plaintiff's free speech claims are DISMISSED WITH PREJUDICE.
WILLIAM Q. HAYES United States District Judge
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Yellowwood trail Kirstenbosch
If you're looking for a not-so-taxing, can-do-on-extremely-hot-days kind of hike, then the Yellowwood trail Kirstenbosch is definitely up there on the list, along with strolls through neighbouring Cecilia forest and Newlands forest.
It's also a great hike to do with children as it's manageable within a couple of hours, or can extend into a whole morning of it as the delightful pools along the way are invariably filled with tadpoles or pebbles and a litany of other amusement options.
Most importantly the walk takes one through what remains of beautiful Afromontane forests in the foothills of the mountains at Kirstenbosch. Afromontane forest is typically found in mountainous regions, characteristically in the Drakensberg, Mpumalanga highveld and Knysna, and filled with massive trees like yellowwood, Cape beech, ironwood, stinkwood, hard pear, shrubs, ferns and a series of wild 'monkey rope' vines that allowed the boys on our walk to give vent to every desire to impersonate monkeys or Tarzan.
The Yellowwood trail is one of four sign posted trails you can do within the boundaries of Kirstenbosch. And the start of the trail follows the road that leads into Skeleton Gorge, but it's well signposted so there isn't much chance that you'll continue upward after the initial incline of the walk by mistake. Trust me, you're looking out for the sign that indicates you can head off at a gentler pace on the contour path long before it appears. About the time when the littlest one says 'mom, please carry me'!
You're also only in the sun for the initial part of the walk, which is about ten minutes or so, and then you enter the dappled sanctuary of the forest, and there is an immediate sense of calm and cool, although it was fairly humid in the forest when we attempted the walk. If you're quiet enough, you'll see any number of birds, including owls, and the rustling of forest shrews, mongoose and mice. We found a beautiful specimen of a bumble bee lying dead on the side of the path. Alright, not quite an owl, but others on the hike with us promised they'd spotted one on their last time in the forest.
And that's the major draw of this walk. You can do it repeatedly without it becoming anything close to boring. The wonderful thing about forests is that they're changing all the time – trees fall, new paths develop and seasons change. Come here in winter and the river that was a trickle on our walk, is a raging torrent due to rainfall, tadpoles give way to frogs, and we seek out the sunny patches, rather than trying to remain within the cool of the forest.
In total the Yellowwood trail is about 3 kilometres. Not much, but there is both a pretty steep ascent and descent, so if your knees are giving you problems, there are other paths you'll want to try first, and for the avid hiker, this is pretty much a waste of time if you're looking for exersion.
It starts on the path just opposite the fragrance garden, or what remains of it as at the moment Kirstenbosch is replenishing these beds. This path, or rather track, is known as Smuts' Track, and pretty soon it hits a moderately steep gradient that meanders alongside Skeleton stream and eventually leads one to Skeleton Gorge waterfall, upon which you stumble on the contour path. The waterfall comes from way above one from Skeleton Gorge, and those attempting the far more arduous hike, head off above the waterfall and higher.
Reaching the Skeleton Gorge waterfall, or trickle as it was on our walk, is something of a blessing. You'll have just done the full climb into the forest and if it's hot, be badly in need of a cool off. Right at the foot of the waterfall is a pool that provides a lot of fun and a great place to paddle. It's a good spot for snacks and shoes off time too. You could see just how forceful the water could be though, given that a couple of trees were standing a little lower down, their roots exposed, and the sand around them eroded to within an inch of their roots.
The forest around us, unbeknown to us, was undergoing something of recovery. Alien tree plantations were removed what must be close to 25 years ago as there is evidence that many of the initial pioneer trees, such as keurboom trees, are busy dying, as they do after about this length of time. They will have provided enough shade to the true forest trees to allow them to grow unhindered. Hence the rather obvious hard pear trees, which now have thicker trunks even than the keurboom. But if you don't know what to look out for, the forest is simply a beautiful forest.
We were also aware of younger yellowwoods – the trail's namesake is not in evidence as mature trees, as many of these met a fate that had something to do with the need for ceilings, floors and furniture (believe it or not, this would have been from 1652 to the 1800s when the initial settlers hit Cape Town). Since 1960 this entire forest has been under rehabilitation.
A little further along you come to yet another stream, this one out of the deep shade of Skeleton Gorge, in the midst of scrub forest and a really good place for a dip, particularly if you're hot. This water is the typical tea-coloured 'black water' that one evidences lower down in the gardens themselves.
Out of the water and back on the path, you reach what is termed a good 'viewing site', which has something to do with the fact that a major landslide occurred here in 1996 bringing half the cliff away with it and totally destroying trees that were over 300 years old on the hillside. But it does give one a great place to look out over the Cape Flats, Muizenberg and False Bay, as you begin to descend once again.
This part of the hike is again rather warm. The fynbos scrub through which we passed had obviously suffered in the last couple of months and some of it was noticeably scorched. By this time, you're beginning to dream about the tea you have waiting on ice in the boot of the car! The Yellowwood trail ends at the garden centre, close to the top restaurant, quite handy if you've packed a picnic that just needs to be brought in from the car.
Useful Links:
Kirstenbosch Botanical Gardens
Cape Town Attractions
Western Cape Hiking Trails
Accommodation in the Western Cape
You are reading Popular Hiking Trails and Walks in South Africa Series Read more from this series of articles.
- Hiking the Otter Trail
- Walking above Simons Town
- The Whale Trail - the five-day Whale Hiking trail
- Table Mountain Hikes
- The Walk to Elephants Eye Cave
- Cape of Good Hope Trail (overnight hiking trail)
- Hike the Hoerikwaggo Trail
- Waterworks Museum Hike, Cape Town
- Valley of the Gods Hiking Trail
- Crouching Lion, Hidden Mountain
- Game for a Walk? Game Viewing Walk
- Easy Walks Cape Town: A couple of the easiest and most beautiful walks in Cape Town
- Take a hike ... in Gauteng!
- Orange Kloof Forest Trail
- Tranquillity Cracks
- Constantia Walks - Discovering the Constantia green belt – city walks with a difference
- Rock-hopping in Bainskloof
- The Postberg Flower Trail
- Forget about its name - there's nothing cute or cuddly about the Otter Trail
- Table Mountain Pipe Track
- Skeleton Gorge hiking trail
- The Hunter Gatherer Hiking Trail
- Hout Bay and beyond ... the Oude Skip hike
- Kologha Forest Trails, Eastern Cape
- The St Lucia Wilderness Trail
- Hiking in Hogsback
- The Swartberg Hiking Trail
- The Strandloper Trail in South Africa's Eastern Cape
- The Swellendam Hiking Trail - a 6-day hike in the Langeberg mountains
- Suicide Gorge – the ultimate kloofing experience
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decided: June 3, 1976.
TINICUM REAL ESTATE HOLDING CORPORATIONv.COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT
Appeal from the Order of the Court of Common Pleas of Delaware County in case of Tinicum Real Estate Holding Corporation v. Commonwealth of Pennsylvania, Department of Transportation. No. 6476 of 1968.
George Luskus, Special Assistant Attorney General, with him Louis J. Presenza, Special Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellant.
Frank L. Tamulonis, Jr., with him Edward Kassab, and Kassab, Cherry & Archbold, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer. Judge Kramer did not participate in the decision in this case.
[ 25 Pa. Commw. Page 48]
The Commonwealth of Pennsylvania has appealed from an order of the Court of Common Pleas of Delaware County granting a new trial in an eminent domain case. A motion for a new trial is addressed to the discretion of the trial court based on the circumstances of the particular case, and the court's action in granting or refusing such a motion will not be reversed in the absence of a manifest abuse of discretion or a clear error of law. Beyrand v. Kelly, 434 Pa. 326, 253 A.2d 269 (1969). The trial court's discretion in this regard is not absolute but is subject to appellate review. Burrell v. Philadelphia Electric Company, 438 Pa. 286, 265 A.2d 516 (1970).
[ 25 Pa. Commw. Page 49]
We have carefully read and studied the record in this case. Although we might have decided otherwise, we cannot conclude that the trial court in this case manifestly abused its discretion by granting a new trial. Further, we do not perceive how we could better discuss and explain the justification for the trial court's ruling than to set forth the excellent opinion of President Judge Catania:
"In this action in eminent domain, the plaintiff condemnee has appealed from a jury award of condemnation damages in the sum of $384,300.00 alleging (1) the verdict was inadequate and (2) the verdict was against the weight of the evidence.
"The Tinicum Real Estate Holding Corporation is the owner of property situated in Tinicum Township, Delaware County, Pennsylvania, bordered on the East by Long Hook Creek, on the West by Darby Creek and occupying property on the North and South side of the Industrial Highway. Prior to May 20, 1968, the size of the area owned by plaintiff totaled 276.85 acres. On the above-mentioned date, the Commonwealth filed a declaration of taking condemning 19.01 acres for the right-of-way for the proposed Interstate 95 Highway, and 4.62 acres for the slope of said highway.
"The area actually taken by the Commonwealth reduced plaintiff's total acreage to 252.22 acres, in addition to severing the property by denying plaintiff access to 40.42 acres.
"A Board of View, duly appointed, awarded the owner $1,144,000.00 in damages, comprised of $244,000.00 as severance damage and $900,000.00 in general damages.
"From this award, an appeal was taken by both parties to the Court of Common Pleas of Delaware County and the above-mentioned jury award was the result. At the time of the trial it was stipulated between
[ 25 Pa. Commw. Page 50]
the parties that the highest and best use of the Tinicum property was commercial-industrial. It was conceded by the witnesses for both the condemnee and the condemnor that the Tinicum property had not yet received the required amount of fill for its ultimate development. The zoning classification for permissible uses of the Tinicum property as of May 20, 1968, indicated that the area was zoned for limited commercial-industrial purposes. Since May, 1970, the entire holdings of the Tinicum area, exclusive of a parcel containing 4.49 acres, were zoned for special use.
"The essential question involved in this appeal is whether the jury verdict was so inadequate as to shock this Court's sense of justice and compel the granting of a new trial? Vaughan v. Commonwealth of Pennsylvania, 407 Pa. 189 (1962). The standard for granting a new trial has been set forth in Austin v. Ridge, 435 Pa. 1 (1969), wherein Mr. Justice Pomeroy stated on behalf of the Supreme Court, at page 5: 'Established doctrine in Pennsylvania dictates that a trial judge abuses his discretion when he grants a new trial merely because he would have arrived at a different conclusion on the facts of the case than that reached by the jury. Hummel v. Womeldorf, 426 Pa. 460, 464, 233 A.2d 215 (1967). Where, however, the trial court is convinced that the verdict is against the clear weight of the evidence or that the judicial process has effected a serious injustice, he is under a duty to grant a new trial. Pritchard v. Malatesta, 421 Pa. 11, 13 (1966).'
"As the Court went on to say, this rule can be simply stated but its application requires a continuing exercise of judicial sensitivity.
"A review of the entire record of this case convinces the Court that a new trial must be granted.
"There was in this case, as in all condemnation cases, widely divergent opinions by the experts as to
[ 25 Pa. Commw. Page 51]
value. However, the divergent opinions of the experts taken together with the wide disparity in the Board of View Award of $1,144,000.00 as opposed to the jury award of $384,300.00 indicates that the jury verdict was inadequate.
"As mentioned above, it was stipulated between the parties that the highest and best use of the Tinicum property was commercial-industrial; also that the property in question required large amounts of fill to make it usable and that the filling was in process of being done. The expert for the plaintiff, John Bloodwell, testified that the fair market value of the land, prior to the taking and unaffected thereby was $6,311,000.00 and its value subsequent to the taking and affected thereby was $4,747,000.00 resulting in damages in the amount of $1,564,000.00. The Commonwealth's expert, Richard deGrouchy, testified that the value of the condemnee's land before the taking was $3,166,000.00 and that its value after the taking was $2,957,000.00, resulting in damages in the amount of $209,000.00. The mere fact of a disparity of opinion as to the evaluation does not in itself justify a new trial. Springer v. Allegheny County, 401 Pa. 557 (1960). The disparity of opinion taken together with the Board of View Award does indicate in the opinion of this Court, the inadequacy of the verdict.
"The property involved in this case with proper fill and support would have been suitable for development of industrial and commercial complexes. The property had considerable frontage on the Industrial Highway and Island Avenue which would be essential for a commercial development. Public utilities such as electricity, water and sewerage were already serving the adjacent property and were readily available for use on a development in the Tinicum properties. Also, the Tinicum properties' access to transportation was a major positive factor which enhanced its potential
[ 25 Pa. Commw. Page 52]
for development for industrial purposes. The property was situated on a main highway artery of the Delaware Valley, specifically the Industrial Highway, adjacent to an airport, a river and a railroad providing an opportunity for air, water and rail transportation.
"The jury's award in this case of $384,300.00 bore no relationship to the testimony presented by the Commonwealth's expert which showed a loss of $209,000.00 or to the testimony of the condemnee's expert which showed damages in the sum of $1,564,000.00. Furthermore, while the amount as found by the Board of View was not binding in any sense upon the Court, nor is it relevant testimony in the trial of the case upon an appeal from the action of the Board of View, yet it is a fair indication of the amount of damages suffered by the landowners and on a motion for a new trial should be considered where the new trial is urged upon the grounds that the verdict of the jury was inadequate as in this case. Mazur v. Commonwealth, 390 Pa. 148 (1957). As we have already mentioned, the Board of View found that the damages suffered by the condemnee amounted to $1,144,000.00, comprised of $244,000.00 as severance damage and $900,000.00 in general damages. This award bore no relation to the verdict reached by the jury which was over $700,000.00 less than the Board of View decision.
"The Commonwealth in opposing the condemnees' motion for a new trial on the basis of the inadequate verdict has cited the case of Stoner v. Metropolitan Edison Company, 439 Pa. 333 (1970), wherein the appellant condemnor argued that the disparity between the viewers' award and the jury verdict was excessive and a new trial should be granted. The Court stated at page 337: 'Undue attention on appeal to the magnitude of the viewers' award would effectively deprive the dissatisfied condemnee of his statutory right to a
[ 25 Pa. Commw. Page 53]
jury determination of damages. . . . Rather than resting upon a comparison between the viewers' award and the jury verdict, our decision as to whether a new trial is called for requires a review of the testimony presented at trial to determine whether the jury verdict was excessive.'
"The Commonwealth has also called our attention to the case of The Faith United Presbyterian Church v. Redevelopment Authority, 7 Pa. Commonwealth Ct. 490 (1972). The Court in that case made note of the fact that a large difference between a Board of Viewers' award and a jury verdict is a factor to consider when a new trial is requested. This is not a controlling factor, however, absent other evidence that the verdict is excessive. The Commonwealth Court determined that there was no other such evidence that the verdict was excessive beyond the Board of Viewers' Award and, therefore, rejected the motion for a new trial.
"In this case the Court feels that there are other reasons beyond the Board of Viewers' decision which led to the conclusion that the verdict was inadequate. The disparity of the various experts' conclusions regarding value has been mentioned above. Also, the fact that the jury's award bore no relation to the testimony presented by the respective experts and, finally, the fact that the evidence produced by the condemnee certainly shows that the property in question was a valuable and large parcel which could be developed in an industrial-commercial manner.
"A review of all the testimony presented at the time of trial with the resulting jury verdict indicates clearly that the jury was confused by the wide disparity of opinions by the experts and lost sight of the vast potential of the land in question. This led to the shockingly inadequate verdict.
[ 25 Pa. Commw. Page 54]
"In Mazur, supra, the Board of View awarded plaintiff $10,000.00 for the Commonwealth's appropriation of a portion of their land for highway purposes. After trial, the jury returned a verdict for the plaintiff in the amount of $4,053.00. The trial court granted a new trial on the ground that the verdict was inadequate. There was also in the Mazur case a wide disparity between the opinion evidence adduced on the issue of damages. The plaintiff's witnesses testified to damages in the amount of $15,000.00 and $11,750.00 respectively. The Commonwealth's expert testified that the damage to plaintiff's property did not exceed $2,500.00. The granting of a new trial in Mazur was ruled justified on appeal to the Supreme Court on two grounds, (1) There was a wide disparity in the damages fixed by the various witnesses and the jury's verdict bore no assignable relation to any of the testimony and (2) The award of the Board of View of $10,000.00 was significantly in excess of the jury's verdict of $4,053.00. We believe that the factors presented in the Mazur case are present in this case. The disparity of damages and the lack of relation of the jury verdict to the testimony together with the $717,000.00 difference between the Board of View Award and the jury's verdict indicate a new trial should be granted on the basis of an inadequate verdict. In the case of Sisters of the Blessed Sacrament for Indians and Colored People v. Philadelphia, 413 Pa. 348 (1964), the Board of View awarded the plaintiffs $23,094.00 and the jury at the common pleas trial awarded zero. The Supreme Court after pointing out that the Board of View is composed of impartial professional men stated: 'This shocking disparity as to value is something which cannot be slightly regarded. While it is true that a jury may not be told of the results reached by a Board of View, an Appellate Court is not
[ 25 Pa. Commw. Page 55]
restricted in its consideration of the record to see that justice is done in accordance with law.'
"As a result of all the factors as set forth above, the Court feels that justice will be served by granting the new trial and does not feel that it is necessary to discuss at length the condemnee's further contention that the verdict was against the weight of the evidence. The Court would point out, however, that when these issues have been presented in other cases, a distinction has been drawn between the contention that a verdict was inadequate and that a verdict was against the weight of the evidence. In Springer v. Allegheny County, 401 Pa. 557 (1960), the Court rejected the contention that the verdict was against the weight of the credible evidence, but went on to state as follows: 'If what the Court meant by its reference to the credible evidence was that the jury should have given greater effect to evidence adduced by the plaintiff and returned a larger verdict, it is to be noted that the verdict was not so disproportionate to what the Board of View had awarded the plaintiff as to justify the trial court in concluding that it was inadequate.'
"The testimony presented by the experts for the respective parties is not held by this Court to have lacked credibility because this issue was to be determined by the jury. However, the disparity in the opinions together with the result of the jury, which bore no relationship to the testimony of either of the expert witnesses, together with the Board of View decision indicates that the verdict was inadequate."
Order affirmed.
Judge Kramer did not participate in the decision in this case.
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Barry's Hitmonlee
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This Hitmonlee is a Fighting-type Pokémon owned by Barry.
It was used in Barry's battle with Paul, where it was shown to be fast and strong. However, in its battle against Paul's Ursaring it burned Ursaring with Blaze Kick, activating its Guts ability. Due to Ursaring's increased attack power, Hitmonlee was overwhelmed and fainted.
Known moves
|Mega Kick
|Casting a Paul on Barry!
|Close Combat
|Casting a Paul on Barry!
|High Jump Kick
|Casting a Paul on Barry!
|Blaze Kick
|Casting a Paul on Barry!
|+ indicates this Pokémon used this move recently.*
- indicates this Pokémon normally can't use this move.
Voice actors
- Yūji Ueda (Japanese)
- Tom Wayland (English)
|Barry's Pokémon


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