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PROPOSED JURY INSTRUCTIONS & VERDICT FORM
OF OHIO BLENDERS, INC.
Comes now condemnee in this eminent domain proceeding, Ohio Blenders, Inc.
(“Ohio Blenders”) and, pursuant to the Court’s Pre‐Trial Order of July 7, 2010, submits the
following proposed jury instructions and verdict form.
1. Introductory Instruction: This case is about the fair market value of the
property that the Redevelopment Authority of the City of York (“RDA”) took from Ohio
Blenders for transfer to the private developer responsible for the Northwest Triangle
redevelopment project. The constitution and laws of the Commonwealth unequivocally
entitle Ohio Blenders to just compensation for the property RDA has taken.
The laws of the Commonwealth define just compensation as the fair market value of
the real estate taken as of the date on which the taking occurred. Your role is therefore to
determine the fair market value of Ohio Blenders’ property as of May 12, 2006, the date on
which RDA filed this condemnation proceeding. Nothing that happened to property values
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or the economy in general between May 12, 2006 and today is of any relevance to your
determination of the fair market value the property enjoyed as of May 12, 2006.
As will be addressed again later, fair market value is defined as the price a willing
buyer would pay to a willing seller in the context of an open market, arms‐length
transaction between the two. To determine fair market value as of May 12, 2006, then, you
must determine the price that Ohio Blenders would have received for its land had it closed a
sales transaction with a willing buyer on that date.
2. Burden of Proof: When a party has the burden of proof on a particular issue,
the party's contention on that issue must be established by a fair preponderance of the
evidence. The evidence establishes a contention by a fair preponderance of the evidence if
you are persuaded that it is more probably accurate and true than not.
To put it another way, think, if you will, of an ordinary balance scale, with a pan on
each side. Onto one side of the scale, place all of the evidence favorable to the plaintiff; onto
the other, place all of the evidence favorable to the defendant. If, after considering the
comparable weight of the evidence, you feel that the scales tip, ever so slightly or to the
slightest degree, in favor of the plaintiff, your verdict must be for the plaintiff. If the scales
tip in favor of the defendant, or are equally balanced, your verdict must be for the
defendant. See Standard Civil Instruction 1.42.
It is important that you recognize that there is no burden of proof with respect to the
main issue before you, i.e., the fair market value of the property. You should consider the
evidence submitted by both sides based on your evaluation of the credibility of that
evidence. You should not hold either side to a higher standard of proof. The only issues in
this case which involve a burden of proof are (1) the amount of damages associated with
Ohio Blenders search for a new business location and (2) the amount of damages owing
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Ohio Blenders for dislocation of its business. The burden of proof for those two issues is on
Ohio Blenders. I will instruct you more specifically on those two issues at a later point in
these instructions.
3. Credibility: As judges of the facts, you are the only judges of the credibility of
the witnesses and their testimony. This means that you must judge the truthfulness and
accuracy of each witness’ testimony and decide whether to believe all, or part, or none of
that witness' testimony. The following are some of the factors that you may and should
consider when judging credibility and deciding whether or not to believe witnesses.
a. Was the witness able to see, hear, or know the things
about which he or she testified?
c. Was the ability of the witness to see, hear, know,
remember, or describe those things affected by youth or
old age or by any physical, mental, or intellectual
deficiency?
d. Did the witness testify in a convincing manner? How did
the witness look, act, and speak while testifying? Was
the testimony uncertain, confused, self‐contradictory, or
presented in any kind of evasive manner?
e. Did the witness have any interest in the outcome of the
case, or any bias, or any prejudice, or any other motive
that might have affected the testimony?
f. How well does the testimony of the witness square with
the other evidence in the case, including the testimony
of other witnesses? Was it contradicted or supported by
the other evidence and testimony?
g. Does the testimony make sense to you?
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h. If you believe some part of the testimony of a witness to
be inaccurate, consider whether that inaccuracy cast
doubt upon the rest of that same witness' testimony.
This may depend on whether the inaccuracy is in an
important matter or in a minor detail.
j. If you find that a witness deliberately testified falsely on
a material point, that is, on a matter that might affect
the outcome of the trial, you may, for that reason alone,
choose to disbelieve other parts or all of that same
witness' testimony. But you are not required to do so.
You should consider all the other factors that bear on
credibility in determining whether to believe other parts
of that witness' testimony.
the testimony of every witness, and all the other evidence, whatever credibility and weight
you think it is entitled to receive. See Standard Civil Instruction 1.44.
4. Weight of Evidence: The number of witnesses offered by one side or the
other does not, in itself, determine the weight of the evidence. It is a factor, but only one of
many factors that you should consider. Whether the witnesses appear to be biased or
unbiased or whether they are interested or disinterested persons, are among the important
factors that indicate the reliability of their testimony. The important thing is the quality of
the testimony of each witness. In short, the test is not which side brings the greater number
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of witnesses or presents the greater quantity of evidence; but which witness or witnesses,
and which evidence, you consider most worthy of belief. Even the testimony of one witness
may outweigh that of many, if you have reason to believe his or her testimony in preference
to theirs. Obviously, however, where the testimony of the witnesses appears to you to be of
the same quality, the weight of numbers assumes particular significance. See Standard
Civil Instruction 5.03.
5. Inconsistent Statements: You may find inconsistencies in the evidence.
Even actual contradictions in the testimony of witnesses do not necessarily mean that any
witness has been willfully false. Poor memory is not uncommon. Sometimes a witness
forgets; sometimes he or she remembers incorrectly. It is also true that two persons
witnessing an incident may see or hear it differently.
If different parts of the testimony of any witness or witnesses appear to be
inconsistent, you the jury should try to reconcile the conflicting statements, whether of the
same or different witnesses, and you should do so if it can be done fairly and satisfactorily.
If, however, you decide that there is a genuine and irreconcilable conflict of
testimony, it is your function and duty to determine which, if any, of the contradictory
statements you will believe. See Standard Civil Instruction 5.04.
6. False in One, False in All: If you decide that a witness has deliberately
testified falsely about a material point (that is, about a matter that could affect the outcome
of this trial), you may for that reason alone choose to disbelieve the rest of the witness'
testimony. But you are not required to do so. You should consider not only the deliberate
falsehood, but also all other factors bearing on the witness’ credibility in deciding whether to
believe other parts of the witness’ testimony. Standard Civil Instruction 5.05.
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7. Circumstantial Evidence: In this case you have heard what the law calls
circumstantial evidence. Circumstantial evidence consists of proof of facts, or circumstances,
from which it is reasonable to infer the existence of another fact. You may consider
circumstantial evidence and give it whatever weight you believe it deserves. Standard Civil
Instruction 5.07.
8. Expert Witnesses: A witness who has special knowledge, skill, experience,
training, or education in a particular science, profession, or occupation may give an opinion
as an expert as to any matter in which he or she is skilled. In determining the weight to be
given to the expert's opinion, you should consider the qualifications and reliability of the
expert and the reasons and facts given for the opinion. You are not bound by an expert's
opinion merely because he or she is an expert; you may accept or reject it, as in the case of
other witnesses. Give it the weight, if any, to which you deem it entitled. Standard Civil
Instruction 5.30.
In general, the opinion of an expert has value only when you accept the facts upon
which it is based. This is true whether the facts are assumed hypothetically by the expert, or
they come from the expert's personal knowledge, from some other proper source, or from
some combination of these. Standard Civil Jury Instruction 5.31.
9. Party Admissions. Mr. Carver served as an agent of RDA and valuing
property within the Northwest Triangle was within the scope of his authorization to act on
RDA’s behalf. Because he was acting as agent of RDA, the statements of fact Mr. Carver
made during his deposition are called admissions. RDA is bound by facts Mr. Carver
admitted and you should treat them as true. The same holds true for statements of fact
made by [any other RDA Representative who testifies at trial]. See Standard Civil
Instruction 2.10.
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Similarly, Mr. Vaupel is the executive officer of Ohio Blenders. Statements of fact
that Mr. Vaupel made during his deposition and at trial are likewise admissions. Ohio
Blenders is bound by facts Mr. Vaupel admitted and you should treat them as true. See id.
10. Complete Taking: Just compensation is the fair market value of the real
estate as of the date on which RDA took the property, i.e., May 5, 2006, the date which RDA
filed its Declaration of Taking. See Jury Instructions for Condemnation Cases (Hon. Jacob
Kalish 2007) at Instruction 2.1.
11. Fair Market Value Generally: Fair market value is the price which would be
agreed upon by a willing and informed buyer and seller, each willing to buy or sell with no
compulsion or necessity, in the open market, at arm’s length, a normal sale taking into
account all uses, including the highest and best use, and potential uses, plus machinery,
equipment, and fixtures forming part of the real estate. See id. at Instruction 3.1.
12. Burden of Poof—Weight of the Evidence: The issue for you to decide in
this case is the amount of compensation due Ohio Blenders. What this means is as to the
real estate you are to consider all of the evidence, both Ohio Blenders’ and RDA’s. In
considering the evidence, you must determine the credibility of the witnesses and you must
determine the weight to be given to the evidence and testimony. By weighing evidence, we
mean that you consider its convincing or persuasive quality, i.e., its effect in inducing belief.
After you have done all this, you arrive at a sum which the evidence persuades you is
Ohio Blenders’ just compensation or extent of its damages. It represents the fair market
value of the real estate. Since the only issue before you is one of compensation, the parties
do not have to prove the exact amount of damages. Rather, the law requires only that each
party present you with such facts as will enable you to arrive at the amount of just
compensation with reasonable certainty. See id. at Instruction 3.2.
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13. Where Owner Gives an Opinion: You will recall that Ken Vaupel, an
executive with Ohio Blenders, testified that in his opinion the fair market value of the
property was $‐‐‐‐‐‐‐‐.00. Under our law, an owner is a qualified valuation expert and may
express his opinion as to the fair market value of the property and testify to all elements that
factor into that determination. You are to treat Mr. Vaupel as you would any other witness
who expresses an opinion and apply to him the same standards of credibility as any other
witness. You should also consider his background and the manner by which he arrived at
his opinion—the factors he considered. Obviously, Ohio Blenders has a financial interest in
the outcome and you may consider that fact in determining his credibility and how much
weight you will give to his testimony, just as you may determine credibility and weight of
the testimony offered by RDA, which likewise has a financial interest in the outcome of
these proceedings. See id. at Instruction 3.3.
14. Assembled Economic Unit Doctrine: The law recognizes that there may be
some problems when a business such as Ohio Blenders must relocate because of the taking
of its property. Obviously, if Ohio Blenders could easily pick up all its items and put them
on a truck for moving to a new location, there wouldn’t be a serious problem. But suppose
the machinery, equipment and fixtures are of such a nature that certain equipment could
not be moved because their utility would be substantially destroyed in the process, or
suppose that the real estate is unique in some way that the owner cannot find real estate
within a reasonable area that is adaptable to the function of the business. As you can see,
such a situation presents problems.
The law recognizes and addresses these problems. First of all, all of the machinery
and equipment together in the plant that is used to perform a service together form what is
called an “assembled economic unit.” The law provides that:
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If all or most of the machinery, equipment, and fixtures can be
removed without significant injury and a comparable economic
unit established elsewhere, then the owner must move what he
can. If anything is left which cannot be moved without
substantially destroying or damaging its value, then the owner
is entitled to its fair market value in place.
However, if a portion of the assembled economic unit cannot be removed and that which
can be removed will not of itself constitute a comparable economic unit, then all the
machinery, equipment, and fixtures, whether fast or loose, can be left in the bui8lding and
the owner is entitled to the fair market value in place of all the machinery, equipment, and
fixtures, as part of the real estate.
The question for you is whether Ohio Blenders, using the then‐existing machinery,
equipment, and fixtures, could have established a comparable economic unit elsewhere. If
yes, you must determine the fair market value of the machinery, equipment, and fixtures left
in place. If you find that Ohio Blenders could not establish a comparable economic unit
elsewhere, i.e., could not move sufficient machinery, equipment, and fixtures, the re‐create
is business at a new location, then you must value the machinery, equipment, and fixtures
left on the real estate, whether affixed or loose, as part of the real estate. See id. at
Instruction 3.4.
15. Comparable Economic Unit: A comparable economic unit is an assembly
of machinery, equipment, and fixtures that could substantially do in the new location what
was done in the old location. See id. at Instruction 3.5.
16. Reproduction Cost, Less Depreciation Approach: One approach that
experts may use to value a property is the cost reproduction approach less depreciation. The
theory of this approach is that by considering what it would cost to reproduce this particular
property new, and deduct from that the depreciation and other adjustments to reflect its
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present condition, the result will be helpful in the determining the fair market value of the
property. See id. at Instruction 4.3.
17. Replacement Cost of Substitute Facilities Doctrine: If you determine
that, based on the evidence, Ohio Blenders’ property has no ascertainable friar market value
and is of a unique character, you may then consider evidence of the replacement cost of
substitute facilities as a measure of damages. See id. at Instruction 4.4.
18. Use Generally: A real estate appraisal expert may consider and testify to any
and all facts and data which he considered in arriving at his opinion—whether or not he had
personal knowledge of this date. Personal knowledge or the lack of it may be considered by
you in determining the weight of the expert’s evidence. The expert may consider the
present use, the highest and best use (i.e., the most profitable use of the real estate), and all
its potential uses. See id. at Instruction 8.1.
19. Dislocation Expenses: The law provides that Ohio Blenders is entitled to
reimbursement for reasonable expenses incurred in the removal, transportation and
reinstallation of personal property. Importantly, valuation pursuant to the assembled
economic unit doctrine does not extinguish Ohio Blenders’ rights to reimbursement for
those items of personal property it did remove and relocate. Nor does compensation under
the doctrine for machinery, equipment, and fixtures left behind cut off his right to receive
reimbursement for other expenses, such as necessary physical changes at a new facility. The
law further provides that Ohio Blenders is entitled to receive damages attributable to
dislocation of its business, i.e., personal damages suffered as a result of the taking. Such
damages in this context are measured by loss of earnings.
20. Expenses for Searching for a New Business: Because Ohio Blenders
moved is business as a result of RDA’s taking, Ohio Blenders is entitled to recover its actual
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reasonable expenses incurred in searching for a replacement location. The burden is upon
Ohio Blenders to establish its actual reasonable costs by a preponderance of the evidence.
See id. at Instruction 9.6.
21. Compensation for Delay: Compensation for delay is a necessary ingredient
of just compensation and Ohio Blenders has a right to be compensated for delay from May
29, 2009, the date RDA was awarded possession of Ohio Blenders’ property, through the
date of your award in this case. See id. at Instruction 9.7.
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IN THE COURT OF COMMON PLEAS
OF YORK COUNTY, PENNSYLVANIA
VERDICT FORM
After due deliberation, we the jury, on this ___ day of October 2010, find as follows:
1. Fair Market Value as of May 12, 2006: $
2. Damages Attributable to Search for New Location: $
3. Damages Attributable to Dislocation: $
4. Damages Attributable to Delay from May 29, 2009: $
Total Damages Due (sum total of awards): $
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Date: September 27, 2010
Respectfully Submitted,
______________________
Rees Griffiths (PA #21896)
Eric Suter (PA #202017)
135 North George Street
York, PA 17401
Phone: 717-848-4900
Facsimile: 717-843-9039
Attorneys for Ohio Blenders, Inc.
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CERTIFICATE OF SERVICE
I hereby certify that on this 27th day of September, 2010, a true and correct copy of the
foregoing Proposed Jury Instructions and Verdict Form of Ohio Blenders was served via email
_________________________
By: Kathleen Moyer, Paralegal
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