The Herald, Sharon, Pa.

Local News

March 22, 2014

School may get to take land after all

MERCER — State Commonwealth Court has reversed the decision of a local judge who dismissed Mercer Area School District’s attempt to condemn property that borders school grounds.

The district hoped to take over the property in order to extend a parking lot and build an emergency access point.

“We’re obviously happy with the result,” said school Superintendent Dr. William D. Gathers.

He said he understands differing opinions about the district’s plan, but said the district wants to do what “is best for the school district and our kids.”

“Our goal is not to hurt anyone or make anyone look bad,” he said.

Glenn Krofcheck, who, with his wife, Edith, is buying the property in question, 398 S. Shenango St., by land contract from Kevin and Doreen Wright – the Krofchecks live in a house on the land – said he will ask the court to reconsider.

“While I’m disappointed with the ruling, this is just a minor setback,” said Krofcheck, who is acting as his own attorney. “It in no way ends the case.”

A message left with the Wrights’ attorney was not returned.

Commonwealth Court sent the case back to Mercer County Common Pleas Court Judge Christopher J. St. John for further proceedings. The judge has set a hearing for Wednesday.

The case already has a rather convoluted history that starts in the fall of 2010, when the school board passed a resolution to take a half-acre lot through its power of eminent domain.

The property owners filed preliminary objections and St. John in 2011 granted them, determining the proposed annexation was excessive, done in bad faith and showed an abuse of discretion.

He said the board moved too quickly and did not review any plans, consult with an expert, such as an engineer, to determine where the access road should be located, or resolve other details that would be necessary for the project to be completed.

The district tried again in 2012, this time identifying 1.83 acres. The landowners again objected and St. John ruled that his first ruling precluded the second action by the school district.

The district argued it was not precluded from the new action because St. John’s opinion recognized that the district had a right to file a second action.

A three-judge panel of Commonwealth Court said St. John reserved for the district the right to file a second action by saying that if it wanted to do so, it would have to correct certain deficiencies from the original filing.

The phrase highlighted by the school district was in a footnote, which the landowners said rendered it lacking in “legal significance.” The language would be significant if it had been spelled out “in the body of the opinion,” the landowners said.

That led Commonwealth Court to examine the significance of footnotes, an analysis that prompted the judges to read opinions from federal appeals courts and courts in Michigan, Connecticut and California.

The issue of footnote significance “has not been squarely addressed by Pennsylvania case law,” Judge Patricia A. McCullough said, writing for the panel.

However, outside courts “are seemingly unanimous in concluding that a holding expressed in a footnote is as much of a judicial opinion as the opinion’s text or order and that a footnote has precedential value so long as it does not pronounce dicta,” McCullough said.

Dicta – the plural of dictum – are judicial opinions that reflect individual views and are not relevant to deciding a case.

“Here ... it is clear from footnote 13’s text that (St. John) was directing the district how to file a second declaration of taking and that it was not rendering gratuitous statements of dictum,” McCullough said. “The trial court’s analysis on footnote 13 directly addressed the merits of the first action, discussing the very issues that were litigated by the parties and explaining how the district abused its discretion in seeking to condemn the property.”

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