Appeal of McCoy

• Decision Date: 12 February 1993
• Parties: Condemnation of Property of James E. McCoy and Patricia M. McCoy, situate in Conewago Township, York County, Pennsylvania, by the Conewago Township Sewer Authority. Appeal of James E. McCOY and Patricia M. McCoy, Appellants.
• Court: Pennsylvania Commonwealth Court

Page 1163

621 A.2d 1163

153 Pa.Cmwlth. 504

Condemnation of Property of James E. McCoy and Patricia M.

McCoy, situate in Conewago Township, York County,

Pennsylvania, by the Conewago Township

Sewer Authority.

Appeal of James E. McCOY and Patricia M. McCoy, Appellants.

Commonwealth Court of Pennsylvania.

Argued Dec. 17, 1992.

Decided Feb. 12, 1993.

Walter A. Tilley, III, for appellants.

Maria Musti Cook, for appellee.

Before COLINS and PELLEGRINI, JJ., and BLATT, Senior Judge.

BLATT, Senior Judge.

James E. and Patricia M. McCoy appeal from an order of the York County Court of Common Pleas (trial court) denying their petition for leave to file preliminary objections nunc pro tunc to a declaration of taking filed by the Conewago Township Sewer Authority (CTSA). We affirm the order denying permission to file the preliminary objections nunc pro tunc.

The factual and procedural history of this case is summarized as follows. CTSA determined that it was necessary to construct a sewage collection and treatment system within Conewago Township and began negotiations in 1991 with various landowners to acquire the necessary property. One such piece of property is a strip of land, approximately 2/10 of an acre in size, located at the intersection of Smith Road and the Susquehanna Trail; this strip is owned by the McCoys. Negotiations with the McCoys were unsuccessful and CTSA filed a declaration of taking pursuant to Section 402 of the Eminent Domain Code. ¹ As required by Section 405 of the Eminent Domain Code, notice of the declaration of taking was sent to the McCoys on August 22, 1991, and received by the McCoys on or about August 23, 1991. The notice stated that the McCoys must file preliminary objections to the taking within thirty days of receipt of the notice.

The McCoys retained T. Frederick Feldman as counsel and instructed him to contest the taking. Feldman entered into negotiations with CTSA but neither filed nor obtained an extension of time in which to file preliminary objections. In February 1992, Feldman withdrew from his representation of the McCoys citing a conflict of interest because he was a member of the Board of View. The McCoys then retained their current counsel who, upon discovering that no timely preliminary objections had been filed, petitioned the court for leave to do so nunc pro tunc. The trial court denied that petition and this appeal followed.

Section 406(a) of the Eminent Domain Code provides as follows:

Within thirty days after being served with notice of condemnation, the condemnee may file preliminary objections to the declaration of taking. The court upon cause shown may extend the time for filing preliminary objections. Preliminary objections shall be limited to and shall be the exclusive method of challenging (1) the power or right of the condemnor to appropriate the condemned property unless the same has been previously adjudicated; (2) the sufficiency of the security; (3) any other procedure followed by the condemnor; or (4) the declaration of taking. Failure to raise these matters by preliminary objections shall constitute a waiver thereof.

Preliminary objections are the exclusive method of challenging the propriety of the exercise of the power to condemn property under the Eminent Domain Code. Redevelopment Authority, City of Erie v. Owners, 1 Pa.Commonwealth Ct. 378, 274 A.2d 244 (1971). ² The decision of a trial court whether there is cause shown justifying an untimely filing of preliminary objections is reviewed using the abuse of discretion standard. Edgewood Building Co., Inc. Appeal, 43 Pa.Commonwealth Ct. 91, 402 A.2d 276 (1979).

The McCoys present three issues for review. Initially they argue that they presented evidence of sufficient just cause to permit the filing of the untimely preliminary objections. The McCoys also argue that the trial court erred twice: by stepping outside the record to find prejudice to CTSA if the untimely objections are allowed and by holding that the McCoys are required to be aware of the thirty day period in which to file preliminary objections. Finally, the McCoys contend that there was a breakdown in the judicial process justifying the filing of untimely objections.

The McCoys argue that the conduct of the former counsel in failing to file timely preliminary objections or obtain an extension of time in which to file, as well as his failure to disclose a conflict of interest, is sufficient cause shown. We disagree. Inadvertence will not justify the untimely filing of preliminary objections under the Eminent Domain Code. Id. Likewise, the alleged misconduct of the McCoys' previous counsel is not sufficient cause shown. In a related context, analyzing whether an allegation of misconduct by an appellant's attorney would justify the filing of an appeal nunc pro tunc, we stated "a policy of extending appeal times on the basis of the fraud or misconduct of a party's own attorney would tend to encourage such abuses, and could not, therefore, be logically supported." Hentz v. Civil Service Commission of Philadelphia, 85 Pa.Commonwealth Ct. 358, 361, 481 A.2d 998, 1000 (1984). The logic which compels the conclusion that the misconduct of a party's attorney be insufficient grounds to justify the filing of an untimely appeal similarly compels the conclusion that such misconduct is insufficient "cause shown" to justify an extension of time to file preliminary objections under the Eminent Domain Code. ³

Further, whether the condemnor is partly responsible for the delay is a factor in the decision whether to allow the filing of preliminary objections nunc pro tunc. Smith v....