In re Condemnation by the Commonwealth
In re Condemnation by the Commonwealth
Opinion of the Court
Opinion by
Appellants Frode Nordhoy and Greg Ramsey (Condemnees) appeal from a decision of the Court of Common Pleas of Berks County which dismissed Condemnees’ preliminary objections to a declaration of taking filed by Commonwealth of Pennsylvania, Department of Transportation (DOT), under the Eminent Domain Code (Code)
This Court’s scope of review is to determine whether the trial court abused its discretion or committed an error of law or whether the findings of fact are supported by competent evidence.
Condemnees initially contend that the trial judge abused his discretion by not enforcing Condemnees’ motion for sanctions. Sanctions may be imposed under Pa. R.C.P. No. 4019 which provides in pertinent part:
(a)(1) The Court may, on motion, make an appropriate order if
(1) a party fails to serve answers or objections to written interrogatories . . .
(2) A failure to act described in subdivision (a)(1) may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has filed an appropriate objection or has applied for a protective order. (Emphasis added.)
Imposition of sanctions is primarily within the sound discretion of the court. See Gonzales v. Procaccio Brothers Trucking Company, 268 Pa. Superior Ct. 245, 407 A.2d 1338 (1979). Sanctions are not customarily imposed absent willful disregard, disobedience of a court order, or an obligation expressly set forth in the Pennsylvania Rules of Civil Procedure. Id. This court finds no abuse of discretion by the trial court in denying the motion for sanctions.
We also find unpersuasive Condemnees’ argument that the trial judge abused his discretion in excusing DOT’s failure to file an objection or apply for a protective order as mandated by Rule 4019. DOT, by letter, advised Condemnees of its objections to the interrogatories which was in accordance with Rule 4019. Accordingly, this Court finds no abuse of discretion or error of law committed by the trial court’s refusal to order sanctions against DOT.
Condemnees’ prelminiary objections also challenge Condemnor’s alleged failure to include a plot plan under Section 405(c)(8) of the Code;
Condemnees’ final argument challenges the trial court’s conduct throughout the proceedings as biased in favor of DOT. Initially, it should be noted that Condemnees raise this issue for the first time on appeal, although provided opportunity to move for recusal prior to the close of proceedings. Parties who seek a judge’s recusal must make timely specific objections at hearing in order to preserve this issue for appeal. See Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291 (1985). However, this Court finds no basis for Condemnees’ contention as the trial judge followed the mandates of Section 406(e) of the Code requiring prompt determination of the preliminary objections. Further, the trial judge noted that Condemnees failed to adequately prepare for the hearing, relying exclusively upon their interrogatories and Commonwealth witnesses rather than studying the comprehensive documentation accessible to them as of February 12, 1986 or deposing witnesses. Hearing of February 20, 1987, Session I, pp. 11-15. Moreover, the February 5, 1987 order entered by the trial judge provided a February 17, 1987 deadline for requesting continuance of the scheduled hearing. Nonetheless, the trial court reviewed each of Condemnees’ twenty-nine interrogatories as well as the preliminary objections and permitted Condemnees’ counsel to question a Commonwealth employee. The trial judge’s refusal to allow additional questioning of witnesses was prompted by his determination that Condemnees’ preliminary objec
Accordingly, neither an abuse of discretion nor error of law was committed by the trial court and the decision entered is therefore affirmed.
Order
And Now, this 22nd day of September, 1988, the decision of the Court of Common Pleas of Berks County dated February 20, 1987 is affirmed.
Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. §§1-101—1-903.
Middletown Township v. Baker, 105 Pa. Commonwealth Ct. 1, 522 A.2d 1182 (1987).
All of the interrogatories, except Nos. 22 and 23, were ordered to be answered by March 2, 1987, subsequent to hearing on the preliminary objections. The trial court found that interrogatories 22 and 23 required clarification and ruled that they were irrelevant to Condemnees’ preliminary objections. Hearing of February 20, 1987, Session II, pp. 49-55.
Hearing of February 20, 1987, Session II, pp. 29-31, 37, 44-45.
Interrogatories 3-7, 13-16, 18, 20, 22-23, and 29.
Condemnees also argue that the Courts failure to enforce DOT’s compliance with Condemnees’ discovery request resulted from an error of law, i.e., application of an erroneous standard for determining information available to a party under Pa. R.C.P. No. 4003.1 pertaining to the general scope of discovery. Condemnees,
26 P.S. §l-405(c)(8) describes the contents of the notice to be given to the condemnee and provides for reasonable identification of the condemnees property in the case of a total taking and a plot plan showing the condemnees entire property and the area taken where a partial taking is effected.
Reference
- Full Case Name
- In Re: Condemnation by the Commonwealth of Pennsylvania Department of Transportation of Right of Way for Legislative Route 146, Section 11S, in The Township of Exeter. Owners of Property: Nordhoy and Ramsey. Frode Nordhoy and Greg Ramsey, Co-Partners
- Cited By
- 5 cases
- Status
- Published