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HERMAN YUDACUFSKI v. COMMONWEALTH PENNSYLVANIA (12/14/82)

decided: December 14, 1982.

HERMAN YUDACUFSKI, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



No. 81-3-388, Appeal from the Order of the Commonwealth Court at No. 306 C.D. 1980, dated November 30, 1980, affirming the Order of the Court of Common Pleas of Schuylkill County, at Nos. 364 September Term, 1965 and 256 March Term, 1967.

COUNSEL

Lewis Kates, Philadelphia, for appellant.

Martin Burman, Sp. Asst. Atty. Gen., for appellee.

O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Roberts, J., files a dissenting opinion in which Flaherty, J., joins.

Author: Mcdermott

[ 499 Pa. Page 606]

OPINION OF THE COURT

This is an appeal from the order of the Commonwealth Court,*fn1 which affirmed the decision of the Court of Common Pleas of Schuylkill County, denying the motion of appellant,

[ 499 Pa. Page 607]

Herman Yudacufski, for a new trial in an eminent domain proceeding.*fn2

In 1964, 88.7 acres of appellant's 790.67 acre tract were condemned by appellee, the Pennsylvania Department of Transportation ("Department"), for construction of Interstate-81 and the relocation of a pre-existing public road which traversed Interstate-81. Appellant's acreage contained a coal processing plant with culm banks and, in addition, was undergoing the planning and development of a lake, golf course, race track and airport. The highway construction divided the tract into two non-contiguous parts.

In 1973, a board of review awarded damages of $376,400.00, from which both parties appealed to the court of common pleas. In a pre-trial ruling, appellant's petition for change of venue, which, among other things, alleged local prejudice against coal operators, was denied without opinion. Appellant formally excepted to this ruling. The case went to trial before the Honorable George W. Heffner, and despite appellant's claim of between $3 million and $5.5 million in damages, judgment at trial was entered on a jury verdict in favor of appellant for $75,000.00.

On appeal to the Commonwealth Court, appellant contended that the trial court erred in denying the pre-trial petition for a change of venue.*fn3 The Commonwealth Court, however, held that this issue was waived under Rule 302(a) of the Pennsylvania Rules of Appellate Procedure because it had not been raised by appellant in his post-trial motion for a new trial. Yudacufski v. ...


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