Opinion
No. 2696 C.D. 2010 No. 2697 C.D. 2010 No. 2698 C.D. 2010
02-23-2012
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
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
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).
Act of June 22, 1964, Special Sess., P.L. 84, as amended, formerly 26 P.S. §§1-101-1-903, repealed by Section 5 of the Act of May 4, 2006, P.L. 112. All references in this Opinion are to the former Code which was in effect at the time of the filing of the Declarations of Taking. The current Eminent Domain Code 26 Pa.C.S. §§ 101-1106, became effective September 1, 2006.
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.
The dangers included fires, unstable ground, spontaneous sinkholes and sudden and unexpected ground collapse, carbon monoxide, smoke, toxic gas and fumes.
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 effort to 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. 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).
It is well settled that any objections to the condemnation not raised in the preliminary objections are waived. In Re Condemnation of Land for the Development of the South East Central Business District Redevelopment Area #1 (Yarnall), 946 A.2d 1143, 1149 (Pa. Cmwlth. 2008), appeal denied, 600 Pa. 751, 965 A.2d 245 (2009).
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. This Court 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."
The record does not reflect whether the common pleas court addressed that motion.
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 evidence and decide whether the Centralia mine fire was still burning and whether, 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."
This evidence consisted of DEP temperature charts to demonstrate underground temperatures at designated locations had gone down several hundred percent and a DEP mine fire study which showed that emissions from the mine fire did not create an atmospheric pollution problem. Motions in Limine, ¶6 at 5; R.R. at 82b.
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.
Condemnees also commenced a federal civil rights suit against CCRA which is pending in the United States District Court for the Middle District of Pennsylvania at No. 1:10-CV-2222, in which they alleged that the condemnations were actually part of the Commonwealth's plot to obtain the mineral rights to anthracite coal worth hundreds of millions of dollars. On March 11, 2011, U.S. District Judge Christopher C. Conner declined to issue a preliminary injunction against the state to enjoin any action in furtherance of the eminent domain proceedings pending in state court, citing Condemnees' unlikelihood of succeeding on the merits.
Condemnees now appeal 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 threat presented 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.
This Court's review in eminent domain cases is limited to a determination of whether or not the common pleas court abused its discretion or committed an error of law. In re Condemnation No. 2 by Com. Ex rel Dept. Of General Services, 943 A.2d 997 (Pa. Cmwlth. 2007), appeal denied, 598 Pa. 751, 954 A.2d 578 (2008).
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. 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).
Section 406 of the Code is very specific in that failure to raise challenges in the preliminary objections at one time results in a waiver of those challenges. Belatedly raising a challenge for the first time orally before the common pleas court is not sufficient.
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.
Alternatively, Condemnees argue that they are entitled to "special equitable relief" because they possess evidence which proves that the reason for the condemnation no longer exists. They allege that since the mine fire is now out or has moved to another location it no longer provides justification for the takings.
Critically, there is nothing in the Code which authorizes a condemnee to request to open or set aside a declaration of taking because, due to the passage of time, the public purpose which served as the basis for the condemnation no longer exists. This Court has also found no case in which a declaration of taking was nullified as a result of such an alleged change of circumstances. Title to the condemned property passed to the Condemnor on the date of the filing of the declaration of taking. Nicoletti v. Allegheny Co. Airport Authority, 841 A.2d 156 (Pa. Cmwlth. 2004). The Preliminary Objections have been overruled. Neither the common pleas court nor this Court has authority to divest the title acquired by the Condemnor. If the Preliminary Objections had been sustained, which did not happen, the court of common pleas may have ordered the revesting of title. The only other opportunity for title to revest in the Condemnees would have been by the Condemnor's, i.e., the CCRA's, "relinquishment" under Section 408 of the Code or its "abandonment" under former Section 410. Neither of which have occurred here.
Section 408 of the former Code, 26 P.S. §1-408, provided that a condemnor may file a declaration of relinquishment within one year from the filing of the declaration of taking, whereupon title shall revest in the condemnee as of the date of the filing of the declaration of taking. This section also provided that the condemor and condemnee may, without the filing of a declaration of relinquishment, by agreement, effect a revesting of title in the condemnee.
Section 410 of the former Code, 26 P.S. §1-410, provided that if the condemnor abandons the purpose for which the property was condemned, the condemnee shall be provided notice and the opportunity to buy it back for the same price paid to the condemnee by the condemnor. --------
Section 406 enables a condemnee to challenge the power to condemn, the sufficiency of the security, the declaration of taking and other procedures followed by the condemnor, including whether a sufficient public purpose exists to support the taking. 26 P.S. §1-406; In Re Condemnation by the City of Coatesville. Indubitably the passage of time will result in a change of circumstances in every case. However, the relevant inquiry for purposes of whether a public purpose exists to justify the exercise of the right of eminent domain must be made at the time the declaration of taking is filed, not in hindsight, decades later. Otherwise, one of the foremost purposes of the elaborate procedures and requirements of the Code, which is to give finality to a condemnation, would be frustrated. Condemnees' assertion that the mine fire no longer poses a danger is simply irrelevant at this stage in the proceedings.
The order of the common pleas court is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 23rd day of February, 2012, the Order of the Court of Common Pleas of Twenty-Sixth Judicial District, Columbia County Branch in the above-captioned matter is hereby affirmed.
/s/_________
BERNARD L. McGINLEY, Judge