Yudacufski v. Commonwealth, Department of Transportation

454 A.2d 923, 499 Pa. 605, 1982 Pa. LEXIS 612
CourtSupreme Court of Pennsylvania
DecidedDecember 14, 1982
Docket81-3-388
StatusPublished
Cited by54 cases

This text of 454 A.2d 923 (Yudacufski v. Commonwealth, Department of Transportation) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Yudacufski v. Commonwealth, Department of Transportation, 454 A.2d 923, 499 Pa. 605, 1982 Pa. LEXIS 612 (Pa. 1982).

Opinions

OPINION OF THE COURT

McDERMOTT, Justice.

This is an appeal from the order of the Commonwealth Court,1 which affirmed the decision .of the Court of Common Pleas of Schuylkill County, denying the motion of appellant, [607]*607Herman Yudacufski, for a new trial in an eminent domain proceeding.2

In 1964, 88.7 acres of appellant’s 790.67 acre tract were condemned by appellee, the Pennsylvania Department of Transportation (“Department”), for construction of Interstate-81 and the relocation of a pre-existing public road which traversed Interstate-81. Appellant’s acreage contained a coal processing plant with culm banks and, in addition, was undergoing the planning and development of a lake, golf course, race track and airport. The highway construction divided the tract into two non-contiguous parts.

In 1973, a board of review awarded damages of $376,-400.00, from which both parties appealed to the court of common pleas. In a pre-trial ruling, appellant’s petition for change of venue, which, among other things, alleged local prejudice against coal operators, was denied without opinion. Appellant formally excepted to this ruling. The case went to trial before the Honorable George W. Heffner, and despite appellant’s claim of between $3 million and $5.5 million in damages, judgment at trial was entered on a jury verdict in favor of appellant for $75,000.00.

On appeal to the Commonwealth Court, appellant contended that the trial court erred in denying the pre-trial petition for a change of venue.3 The Commonwealth Court, however, held that this issue was waived under Rule 302(a) of the Pennsylvania Rules of Appellate Procedure because it had not been raised by appellant in his post-trial motion for a new trial. Yudacufski v. Commonwealth, Department of Transportation, 54 Pa.Cmwlth. 448, 451, 422 A.2d 1181, 1182 (1980).

[608]*608Rule § 302(a) provides: “Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.” It cannot be disputed that the venue issue was not raised for the first time on appeal to the Commonwealth Court. Appellant submitted a pre-trial petition for change of venue. The trial court ruled adversely on this petition and appellant excepted to this denial as a matter of record. In addition, appellant noted the change of venue issue in his brief in support of his post-trial motions, although the claim was not specifically enumerated as a ground for a new trial.

A more decisive question is whether appellant’s pre-trial motion for change of venue was properly preserved for appellate review. The Department contends that appellant’s failure to raise the venue question as a specific ground for a new trial in his post-trial motions amounts to a waiver of this issue for purposes of appellate review. Appellant argues that his formal exception to the pre-trial ruling was sufficient to preserve the issue on appeal.

It is axiomatic that timely and specific objections are required to preserve claims of error during a civil trial. In Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974), this Court held that the general claim of basic and fundamental error was insufficient to preserve for appeal the claim of an erroneous jury instruction, where no specific exception was taken at trial. 457 Pa. at 260, 322 A.2d at 117. In Dilliplaine, Mr. Justice Roberts cited numerous reasons for the requirement of filing timely, specific objections for purposes of aiding both appellate review and trial court review of post-trial motions. 457 Pa. at 258-59, 259 n. 8, 322 A.2d at 116-17,117 n. 8. Moreover, this Court in Benson v. Penn Central Transportation Company, 463 Pa. 37, 342 A.2d 393 (1975), held that a party failed to preserve for appellate review alleged instructional error in the court’s charge to the jury because he did not file post-verdict motions on the issue. 463 Pa. at 41, 342 A.2d at 396.

However, notwithstanding the necessity of preserving alleged errors which occurred during a civil trial through post-trial motions, this Court has not specifically enunciated [609]*609the manner in which pre-trial rulings are to be preserved. The Pennsylvania Rules of Civil Procedure, dealing with post-trial motions in trials both with and without a jury, Rule 227.1 and Rules 1038(d) and 1518 respectively, do not specifically include a requirement that pre-trial rulings must be raised in post-trial motions in order to be preserved.4 In addition, the Eminent Domain Code, Act of June 22, 1964, Special Sess.P.L. 84, as amended, 26 P.S. § 1-101 et seq., does not address this particular issue.5

Furthermore, the record clearly indicates that appellant formally excepted to the trial court’s denial of a change of venue and that the venue issue was at least mentioned in appellant’s brief in support of his post-trial motions. In the absence of an explicit requirement in our Rules or cases that appellant take further steps to preserve the alleged error for appeal, we will not consider the pre-trial venue issue waived for purposes of appeal.6

Turning now to the merits of appellant’s petition for change of venue, our standard of review of the denial of such a petition is whether the trial court abused its discretion. Commonwealth v. Swanson, 432 Pa. 293, 248 A.2d 12 [610]*610(1968), cert. denied, 394 U.S. 949, 89 S.Ct. 1287, 22 L.Ed.2d 483 (1969); Commonwealth v. Green, 396 Pa. 137, 151 A.2d 241 (1959). In support of his contention that the court of common pleas abused its discretion in denying the change of venue, appellant asserts the opinion of the same court, per President Judge Curran, in Seltzer Coal Co. v. Commonwealth, 72 Sch.L.R. 29 (1976). Two weeks before the change of venue was denied in the instant case, President Judge Curran granted a change of venue in Seltzer, which also involved condemnation of property for construction of Interstate-81. Appellant cited President Judge Curran’s well-reasoned Seltzer opinion in connection with his own change of venue petition and he now argues that for purposes of change of venue, Seltzer and the instant case are indistinguishable in all material respects.

As with Yudaeufski, Seltzer involved the partial taking of a tract of land containing a coal processing plant. Both the Yudaeufski and Seltzer tracts were located in Schuylkill County and were taken for the construction of Interstate-81. In addition, both Seltzer’s and appellant’s condemnation claims involved a substantial amount of culm.7 Seltzer’s condemned tract contained approximately 414,000 gross tons of culm, while appellant alleged the loss of 1,500,000 tons of culm.8

President Judge Curran, based his decision granting a change of venue in Seltzer on four factors, all of which are present in the instant case.

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Bluebook (online)
454 A.2d 923, 499 Pa. 605, 1982 Pa. LEXIS 612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yudacufski-v-commonwealth-department-of-transportation-pa-1982.