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COMMONWEALTH PENNSYLVANIA v. HERMAN YUDACUFSKI (07/24/89)

decided: July 24, 1989.

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



Appeal from Common Pleas Court, Delaware County; Honorable John V. Diggins, SEN. JUDGE.

COUNSEL

William J. Cressler, Asst. Counsel, with him, John L. Heaton, Chief Counsel, Harrisburg, for appellant.

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

Craig and Barry, JJ., and Kalish, Senior Judge.

Author: Barry

[ 127 Pa. Commw. Page 565]

OPINION

We are presented with yet another chapter of a legal saga which has been ongoing for more than a score. This Court has published three opinions concerning the dispute between Herman Yudacufski, the condemnee and the Department of Transportation (DOT), the condemnor. Yudacufski Appeal, 93 Pa. Commonwealth Ct. 148, 500 A.2d 1271 (1985) (Yudacufski III); Department of Transportation v. Yudacufski, 83 Pa. Commonwealth Ct. 609, 479 A.2d 635 (1984); Yudacufski v. Department of Transportation, 54 Pa. Commonwealth Ct. 448, 422 A.2d 1181 (1980) (Yudacufski I). The Supreme court accepted allocatur on the oldest

[ 127 Pa. Commw. Page 566]

    of these cases and that court's order directing the Court of Common Pleas of Schuylkill County to grant Yudacufski's petition for change of venue is involved in this appeal. Yudacufski v. Department of Transportation, 499 Pa. 605, 454 A.2d 923 (1982) (Yudacufski II).

The factual history is set forth in those opinions. A brief discussion of the facts is nonetheless necessary. DOT condemned two tracts of Yudacufski's land in the mid 1960's. Yudacufski commenced actions to recover for the surface rights taken. In 1971, he sought the appointment of a State Mining Commission (Commission)*fn1 to seek compensation for subsurface coal rights involved. Those petitions were docketed at the same terms and numbers as the two eminent domain cases. The court in Schuylkill County convened a Commission on July 15, 1971. Shortly thereafter, Yudacufski designated his representative to that five person body but none of the Commission's representatives from the Public Utility Commission, the Secretary of Mining and DOT were ever named.*fn2 Nothing more was done with regard to the Commission for some time thereafter.

In the meantime, trial on the eminent domain claims was held in Schuylkill County. Yudacufski appealed to this Court and we affirmed. Yudacufski I. As already mentioned, the Supreme Court reversed and directed that the Schuylkill County court grant Yudacufski's petition for a change of venue. Yudacufski II. Shortly after that opinion was filed, the Supreme Court ordered that "the trial of said case be transferred to Delaware County . . . ."

Backing up again as we must, Yudacufski filed a second application seeking to convene a State Mining Commission in 1982 in Schuylkill County. The court denied that application and Yudacufski sought our review. We affirmed, holding that this application was filed well ...


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