Hynoski v. Commonwealth, 2696 C.D. 2010
| Decision Date | 23 February 2012 |
| Docket Number | No. 2698 C.D. 2010,No. 2696 C.D. 2010,No. 2697 C.D. 2010,2696 C.D. 2010,2697 C.D. 2010,2698 C.D. 2010 |
| Parties | Steven Hynoski and Bonnie Hynoski, husband and wife, Appellants v. Commonwealth of Pennsylvania, by its agent, Columbia County Redevelopment Authority Helen Hynoski, Walter Hynoski, and Christine Hynoski, Appellants v. Commonwealth of Pennsylvania, by its agent, Columbia County Redevelopment Authority Lamar Mervine, Jr. and Lana Mervine, husband and wife, Appellants v. Commonwealth of Pennsylvania, by its agent, Columbia County Redevelopment Authority |
| Court | Pennsylvania Commonwealth Court |
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
In these consolidated cases, Steven and Bonnie Hynoski, husband and wife, Helen Hynoski, Walter Hynoski, Christine Hynoski, and Lamar Mervine, Jr. and Lana Mervine, husband and wife (collectively "Condemnees") appeal from the judgment entered by the Court of Common Pleas Twenty-Sixth Judicial District, Columbia County Branch (common pleas court), on the jury verdict that established the fair market values of Condemnees' properties for purposes of just compensation under the former Eminent Domain Code (Code).1
Condemnees were among the one thousand or so residents whose properties, located in the Borough of Centralia, were condemned by the Commonwealth in 1993 due to dangers associated with a massive underground "mine fire" which began in 1962, and continued despite repeated and costly efforts to extinguish it.2
In 1983, the Pennsylvania Department of Community Affairs (DCA) and the Columbia County Redevelopment Authority (CCRA) initiated a program to voluntarily relocate Centralia's residents. The Federal government allocated more than $42 million for relocation efforts. The majority of residents accepted buyout offers and voluntarily relocated. Several citizens, including Condemnees, refused to move. On January 28, 1993, the CCRA, as the contractual agent for the DCA, filed Declarations of Taking to acquire the remaining properties in an effortto safely relocate these remaining residents and provide them with just compensation under the Code.
On February 25, 1993, Condemnees' prior counsel filed Preliminary Objections to the Declaration of Taking on behalf of Bonnie Hynoski, one of the Condemnees herein, and numerous remaining residents, which challenged the CCRA's authority to exercise the right of eminent domain, asserted violations of due process, and claimed that the takings were void because they lacked the proper security. CCRA filed an answer and oral argument was scheduled for May 14, 1993.
At oral argument, Condemnees' requested an evidentiary hearing to determine whether the threat of the underground mine fire still existed as of the date of the takings. The common pleas court found that Condemnees waived the issue because it was not raised in Preliminary Objections.3 The common pleas court denied the Preliminary Objections and Condemnees appealed to this Court. In the Matter of the Condemnation of the Surface of That Certain Tract of Land Located in the Borough of Centralia, 658 A.2d 481 (Pa. Cmwlth. 1995), appeal denied, 542 Pa. 651, 666 A.2d 1059, cert. denied 517 U.S. 1119 (1996).
In the 1995 appeal, Condemnees argued, among other things, that the common pleas court should have held an evidentiary hearing to determine whether the threat of the underground mine fire existed as of the date of the takings. ThisCourt concluded that the issue was waived due to the Condemnees' failure to raise it in their Preliminary Objections pursuant to former Section 406 of the Eminent Domain Code, which required all preliminary objections to be raised at one time and in one pleading. 26 P.S. §1-406(c). Borough of Centralia, 658 A.2d at 485.
After remand, the CCRA petitioned for Appointment of a Board of Viewers. Condemnees filed "Renewed Preliminary Objections" to the Petition of Appointment of the Board of Viewers and argued issues of "fraud" and "change in circumstances."4
A Board of Viewers was appointed on January 27, 1998, which issued its award on October 2, 2009. Condemnees appealed the award to the common pleas court.
A jury trial was scheduled for January 7, 2010, on the issue of valuation. Prior to trial, Condemnees, through new counsel, filed "Consolidated Motions in Limine and for Special Pretrial Relief." The Motions alleged that "the mine fires no longer provide justification for the takings" and that the mine fires "are no longer a threat to the residents of the area." Consolidated Motions in Limine and for Special Pretrial Relief, January 7, 2010, ¶¶1, 6 at 1, 5; Reproduced Record (R.R.) at 78b, 82b. Condemnees asked the common pleas court to consider their evidence5 and decide whether the Centralia mine fire was still burning andwhether, and to what extent, it posed a risk of danger to the affected areas in question. After oral argument, the common pleas court denied the "Motions in Limine."
Subsequently, Condemnees petitioned for a preliminary injunction in this Court's original jurisdiction to enjoin further proceedings until Condemnees were permitted to present evidence that "the fire is going out" and that "air quality is the same as it is in Lancaster, Pennsylvania" and that one homeowner in the condemned area had his property returned to him in fee simple, and the declaration of taking was withdrawn. Transcript of Proceedings, May 3, 2010, at 5; R.R. at 43a. The Honorable Keith B. Quigley, after hearing argument, denied the request for preliminary injunction by order dated May 3, 2010.
Jury verdicts were entered on September 10, 2010, which awarded Condemnees fair market values for their properties.6
Condemnees now appeal7 from the entry of judgment on the verdicts and from the common pleas court's refusal, prior to trial, to "reopen the proceedings" to consider evidence "on the issue of the existence and threatpresented by the alleged fires based upon abundant evidence that had been revealed in recent years showing that the fires either never were or never would be the threat represented to the public over the preceding 20-25 years." Condemnees' Brief at 7. (Emphasis added). In essence, Condemnees seek to set aside the Declarations of Taking because the alleged threat to the public which precipitated the takings, i.e., the mine fire: (1) did not exist at the time the Declarations of Taking were filed, and/or (2) no longer exists. They claim that the fire has either burned itself out or has moved away from the town, eliminating any authority for condemnation.
Initially, this Court notes that, contrary to Condemnees' contention, the evidence they claim was recently discovered was clearly known to them as early as May of 1993, when they first raised this issue before the common pleas court at oral argument.8 At that time, Condemnees sought to introduce the same evidence they now claim is newly discovered, that is, that the threats posed by the underground mine fire did not exist as of the date of the takings. The common pleas court found that this issue was waived because it was not raised in Condemnees' Preliminary Objections. This Court affirmed in Borough of Centralia. The Pennsylvania Supreme Court denied Condemnees' request for an appeal, as did the United States Supreme Court. The decision is final.Condemnees are precluded by the doctrine of res judicata from attempting to raise it again. Tobias v. Halifax Twp., 28 A.2d 223 (Pa. Cmwlth. 2011).
Even if this issue was not precluded by res judicata, it would be without merit. In Eways Appeal, 388 A.2d 1108 (Pa. Cmwlth. 1978), this Court rejected a similar attempt to attack a Declaration of Taking, in hindsight, based on what the condemnees perceived to be stale information. There, the Redevelopment Authority of the City of Reading filed a Declaration of Taking for the Eways' property on December 22, 1975. The Declaration of Taking included a certification of blight. The Eways filed preliminary objections to the declaration of taking, but at argument before the trial court, they relied upon an issue which had not been raised by way of preliminary objection. That issue was whether the certification of blight was stale. Because the Eways had failed to raise the issue in their Preliminary Objections, the trial court held that the issue was waived.
On appeal to this Court, the Eways again argued that the blight no longer existed when the declaration of taking was filed and that "too long a time elapsed between the date it was rendered and the date on which the declaration of taking was filed." Eways Appeal, 388 A.2d at 1109. This Court found that the Eways' argument was, in reality, a challenge to the right or power of condemnation that must be raised by preliminary objection. Similarly, in this controversy, because Condemnees' challenge relates to the Condemnor's power to condemn and lawfulness of the taking, Condemnees were required to raise that objection in their Preliminary Objections.
...
To continue reading
Request your trial