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APPLICATION HERMAN YUDACUFSKI. HERMAN YUDACUFSKI (11/25/85)

decided: November 25, 1985.

IN RE: APPLICATION OF HERMAN YUDACUFSKI. HERMAN YUDACUFSKI, APPELLANT


Appeal from the Order of the Court of Common Pleas of Schuylkill County in case of In Re: Application of Herman Yudacufski, No. S-894-1982, Application to Convene a State Mining Commission.

COUNSEL

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

Scott M. Olin, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellee.

Judges Rogers, MacPhail and Barry, sitting as a panel of three. Opinion by Judge Barry. Senior Judge Barbieri did not participate in this decision.

Author: Barry

[ 93 Pa. Commw. Page 149]

This appeal results from an order of the Court of Common Pleas of Schuylkill County which sustained preliminary objections filed by the Commonwealth of Pennsylvania, Department of Transportation (DOT) and dismissed an application to convene the State Mining Commission filed by appellant Herman Yudacufski.

The factual history of this case dates back two decades. Appellant is the owner of both the surface rights and subsurface mineral rights of certain lands in Schuylkill County. In order that Interstate 81 (I-81) could be constructed, DOT condemned a portion of appellant's land in two separate condemnations. The first, dated July 30, 1965, involved 54.11 acres of appellant's land. The second, in February

[ 93 Pa. Commw. Page 150]

    of 1967, took 68.83 acres. As a result of the takings, certain coal reserves had to be left in place to provide vertical and lateral support for I-81. As the result of the takings, appellant sought just compensation from DOT. Actions under the Eminent Domain Code, for the surface rights taken, were commenced in the Court of Common Pleas of Schuylkill County at Nos. 364 September Term, 1965 and 365 March Term, 1967. On October 23, 1970, appellant petitioned for the appointment of a State Mining Commission, at the same docket numbers assigned to the eminent domain actions, in accordance with the provisions of the Act of June 1, 1933, P.L. 1409, as amended, 52 P.S. § 1501. That application was granted on July 15, 1971. Although the record is unclear, appellant alleges the proceedings before the State Mining Commission were deferred until completion of the eminent domain proceedings.

In 1977, appellant's eminent domain claims were decided at a jury trial in Schuylkill County. This Court affirmed the jury's award, Yudacufski v. Commonwealth, 54 Pa. Commonwealth Ct. 448, 422 A.2d 1181 (1980). Appellant then obtained new counsel who successfully petitioned the Supreme Court for review. The Supreme Court reversed, holding that appellant's petition for a change of venue had been improperly denied. Yudacufski v. Commonwealth, 499 Pa. 504, 454 A.2d 923 (1982). This portion of the case has yet to be finally disposed of. See Commonwealth v. Yudacufski, 83 Pa. Commonwealth Ct. 609, 480 A.2d 369 (1984).

In March of 1982, appellant filed the present application to convene a State Mining Commission, alleging that inordinant delay and irreparable harm would result should appellant have to wait until completion of the eminent domain proceedings. DOT

[ 93 Pa. Commw. Page 151]

    filed preliminary objections to this application, arguing, inter alia, that the action was untimely filed. The trial court agreed and sustained DOT's objections and ...


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