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COMMONWEALTH PENNSYLVANIA v. HERMAN YUDACUFSKI (07/12/84)

decided: July 12, 1984.

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



Appeal from the Order of the Court of Common Pleas of Delaware County in case of Herman Yudacufski v. Commonwealth of Pennsylvania, Department of Transportation, Misc. No. 83-3309.

COUNSEL

Andrew H. Cline, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.

Lewis Kates, Kates, Livesey & Mazzocone, for appellee.

Judges MacPhail, Palladino and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 83 Pa. Commw. Page 611]

The Department of Transportation (DOT) appeals here an order of the Court of Common Pleas of Delaware County. This case has been in litigation for approximately eighteen years and, not surprisingly, its history is somewhat complex.

Some time between 1964 and 1967, two parcels of land, which were owned by the appellee, Herman Yudacufski, were condemned by DOT. Pursuant to a petition filed by Yudacufski, a Board of View (Board) was appointed, which subsequently filed reports. Both parties appealed the Board's decision, raising various claims, and a trial was held in the Court of Common Pleas of Schuylkill County. A subsequent appeal was then taken from the common pleas court to this Court, which affirmed the decision, but our decision was in turn reversed by our Supreme Court, which also ordered a remand to the Court of Common Pleas of Schuylkill County with directions to grant a petition for change of venue. Yudacufski v. Department of Transportation, 499 Pa. 605, 454 A.2d 923 (1982). A trial de novo, therefore, was scheduled to commence on

[ 83 Pa. Commw. Page 612]

September 9, 1983 in the Court of Common Pleas of Delaware County, hereinafter the trial court. On June 3, 1983, however, DOT filed a petition in the trial court to modify in part and confirm in part the aforementioned report of the Board. From the trial court's order, the instant appeal ensued.

DOT contends that: (a) because Yudacufski failed to appeal the Board's findings concerning the area of property owned by the condemnee, the extent of the taking, and the date of the taking, the findings on these subjects are binding upon the parties at trial; and, (b) that the parcels of land in question were part of a "unity of use." Yudacufski argues, inter alia, that this appeal, prior to a trial de novo, is interlocutory and that we should dismiss this case for want of jurisdiction.

As to our jurisdiction, we note that the authority to review decisions from the Board is found in the following sections of the Eminent Domain Code (Code):

Section 515 of the Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-515 provides, in part, that:

Any party aggrieved by the decision of the viewers may appeal to the court of common pleas. The appeal shall raise all objections of law or fact to the viewers' report. The appeal shall be signed by the appellant or his attorney or his agent and no verification shall be required. Any award of damages or assessment of benefits, as the case may be, as to which no appeal is taken, shall become final as of course and shall constitute a final judgment.

Section 516 of the Code, 26 P.S. § 1-516 provides, in part, that:

(a) The appeal shall set forth:

[ 83 Pa. Commw. Page 613]

. . . .

(4) Objections, if any, to the viewers' report, other than to the ...


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