Opinion
No. 46 WAP 2017
02-20-2019
Stephen J. SZABO and Mary B. Szabo, Appellees v. Commonwealth of Pennsylvania, DEPARTMENT OF TRANSPORTATION, Appellant
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
This appeal asks us to determine whether a failure to file preliminary objections to a declaration of taking resulted in waiver under Section 306 of the Eminent Domain Code, 26 Pa.C.S. §§ 101 - 1106 (Code). After careful review, we hold that the declaration did not establish the extent or effect of the taking. Accordingly, the failure to file preliminary objections within thirty days of service did not result in waiver of the right to assert ownership and seek just compensation, and therefore we affirm the decision of the Commonwealth Court to remand the matter for an evidentiary hearing.
Appellees, Steven and Mary Szabo, own real property located at 3101 Washington Road, McMurry, Pennsylvania where they operate a hair salon and skin care business. The property, which abuts both Route 19 and Old Washington Road, is improved with a parking lot and commercial structure. Appellant, the Pennsylvania Department of Transportation (PennDOT or Department) developed a road expansion plan to connect Route 19 with Old Washington Road by means of an exit ramp that would run across a section of the Szabos land, identified in the declaration of taking as Parcel 5. The Department attempted to purchase the property from the Szabos; however, the parties could not come to an agreement.
On January 10, 2013, after six months of negotiations, PennDOT served the Szabos with a declaration of taking for a 1.040 acre right of way, and a 1.729 acre temporary construction easement on Parcel 5, for the purpose of expanding State Route 19. Declaration of Taking Property Plan, 12/3/12 at Sheet 1 of 2. The plot plan stated that Parcel 5 had an effective size of 3.128 acres, and the declaration of taking marked the right of way seized from Parcel 5 as required under Section 305.
Section 305 governing notice provides, in pertinent part:
§ 305 Notice to condemnee
(c) Contents.-- The notice to be given the condemnee shall state:
...
(9) In the case of a partial taking, a plot plan showing the condemnee's entire property and the area taken.
26 Pa.C.S. § 305(c)(9).
The plot plan served with the declaration also listed two adjacent parcels of land, Parcels 1 and 9. The owners of Parcel 1 were listed as Edward A. Courtney, Jr. and Susan H. Courtney, H & W (1/2 Interest) & Heirs of Eveline H. Roach; Being Bessie A. Fife Her Heirs and Assigns (1/2 Interest), and the owner of Parcel 9 was listed as The Home Rule Municipality of Peters Township. Id. at Sheet 1 of 2. Lines demarcating Parcel 5 from Parcels 1 and 9 were labeled "probable [sic] correct" and a property note indicated that "the Gerrick plan, dated September 1996 ... was not used for the Szabo boundary lines." Id. The note described several errors discovered within the chain of title, including a distance line of 178.2 feet, mislabeled as 270 feet, and an unrecorded outsale to the Montour Railroad Company, which was then transferred to the Home Rule Municipality of Peters Township in 1985. Id. The lower portion of both plans stated the "private property lines are plotted from the deed of record," but noted those lines "were not surveyed by the professional land surveyor responsible for the project" and advised "this property plot is not to be substituted for a boundary survey." Id.
H. George Gerrick was the predecessor in interest to the Szabos.
Importantly, the plot plans attached to the declaration of taking did not indicate that any portions of Parcels 1 and 9 were condemned. Moreover, the plot plan failed to illustrate that Parcel 1 was condemned on November 8, 2012, and Peters Township conveyed Parcel 9 to PennDOT by deed in lieu of condemnation, recorded on June 26, 2012. Thus, the Szabos were provided with notice solely of the portion of Parcel 5, which was correctly marked as owned by the Szabos, that was to be condemned.
Correspondence attached to the notice of condemnation advised the Szabos that they had the right to receive estimated just compensation for land taken from Parcel 5 in the amount of $ 587,000 and their acceptance of payment would in no way jeopardize their right to petition the court to appoint a board of viewers to determine the precise amount of compensation to which they were entitled. A memorandum of law attached to the declaration informed the Szabos they could, within 30 days, file preliminary objections to challenge the declaration of taking. Because the Szabos had no objection to the portion of Parcel 5 indicated as condemned, the Szabos did not file preliminary objections.
Section 306 of the Code addresses preliminary objections to a declaration of taking and provides, in pertinent part:
§ 306. Preliminary objections
(a) Filing and exclusive method of challenging certain matters.--
(1) Within 30 days after being served with notice of the condemnation, the condemnee may file preliminary objections to the declaration of taking.
...
(3) Preliminary objections shall be limited to and shall be the exclusive method of challenging:
(i) The power or right of the condemnor to appropriate the condemned property unless it has been previously adjudicated.
(ii) The sufficiency of the security.
(iii) The declaration of taking.
(iv) Any other procedure followed by the condemnor.
(b) Waiver.-- Failure to raise by preliminary objections the issues listed in subsection (a) shall constitute a waiver. Issues of compensation may not be raised by preliminary objections.
26 Pa.C.S. § 306 (a), (b).
On April 8, 2013, PennDOT deposited $ 587,000 estimated just compensation with the Court of Common Pleas of Washington County (Trial Court). On December 12, 2013, the Szabos filed a petition for the appointment of viewers pursuant to Section 502 to determine just compensation for the condemnation of Parcel 5. Petition for Evidentiary Hearing, 5/13/15, at ¶¶ 4-5. The trial court appointed a board of viewers and the Szabos requested and received their estimated just compensation of $ 587,000 from the trial court. A hearing before the board of viewers was scheduled for May 21, 2015.
Section 502 addresses the appointment of a board of viewers and provides, in pertinent part:
§ 502. Petition for appointment of viewers
(a) Contents of petition. -- A condemnor, condemnee or displaced person may file a petition requesting the appointment of viewers, setting forth:
...
(6) A request for the appointment of viewers to ascertain just compensation.
26 Pa.C.S. § 502 (a)(6).
On May 13, 2015, the Szabos asserted for the first time that the ownership interests provided in the declaration of taking were incorrect and filed a petition for an evidentiary hearing with the trial court. The petition informed the court that the Szabos had recently hired a registered surveyor to prepare a plan depicting their property. The surveyor's plan demonstrated that the plan attached to the declaration of taking was inaccurate in that it failed to show the entire property owned by the Szabos prior to condemnation. Petition for Evidentiary Hearing, 5/13/15, at ¶ 7. The Szabos notified PennDOT of the error, produced the survey prepared for them by the registered surveyor, offered to meet with PennDOT to demonstrate the results of the title search performed by the Commonwealth Land Title Company, and requested the official plan be changed. In response, PennDOT denied that its plans were erroneous, and all attempts at remedy failed. The Szabos therefore requested, "due to the issue of fact regarding the extent and nature of the property interest condemned and the owners thereof, an evidentiary hearing ... to resolve said issue." Id. at 9.In its answer to the petition, PennDOT admitted that while Section 504(d)(5) of the Code mandates that an evidentiary hearing be conducted by the court and not the board of viewers, it was inapplicable in this instance because Section 504(d)(5) does so only in the specific context in which issues are raised through preliminary objections. Further, PennDOT denied that the plans included with the declaration of taking were inaccurate, stating that strict proof is demanded at the time of hearing demonstrating ownership. Notwithstanding the request for proof, PennDOT argued that the trial court did not have jurisdiction to address the averments raised by the Szabos because the Szabos admittedly had not raised these issues within thirty days of service of the declaration of taking. Consequently, issues related to the extent and nature of the property interest condemned were waived under Section 306. The trial court directed the parties to file briefs.
Section 504 addresses the appointment of viewers and provides, in pertinent part:
§ 504. Appointment of viewers
(d) Preliminary objections.--
...
(5) If an issue of fact is raised, the court shall conduct an evidentiary hearing or order that the evidence be taken by deposition or otherwise, but in no event shall evidence be taken by the viewers on this issue.
26 Pa.C.S. § 504 (d)(5).
In their brief to the trial court, the Szabos repeated that the plan did not adequately establish the extent or effect of the taking because it did not show the entirety of their property interests prior to the condemnation. Accordingly, they argued their claim should not be subject to waiver under Section 306.
PennDOT, in response, emphasized waiver under Section 306, and asserted that the trial court did not have jurisdiction over these issues because they had not been raised within thirty days of receipt of the declaration of taking. It stated "substantial prejudice" to the Department would result from raising an issue "which is so basic to the case" beyond the span of thirty days. Brief in Opposition to Plaintiffs' Petition for Evidentiary Hearing, 6/12/2015, at 8.
On August 17, 2015, the trial court denied the Szabos' Petition for Evidentiary Hearing. In ruling against the Szabos, the court noted that "there [was] no dispute as to what property PennDOT desire[d] to take -- the Szabos [did] not argue that the geographical boundaries of PennDOT's plan [were] ambiguous." Trial Ct. Op., 8/17/15, at 3. Further, the court concluded that "there [was] no dispute about the effect of the taking, i.e. what impact it would have on the remainder of the Szabos' property interest." Id. Characterizing a failure in "extent or effect" as fundamentally a question of notice to the landowner at the time the declaration is filed, and citing In re Commonwealth, Department of General Services , 714 A.2d 1159 (Pa. Cmwlth. 1998), and Commonwealth, Department of Transportation v. Greenfield Township-Property Owners , 135 Pa.Cmwlth. 113, 582 A.2d 41 (1990), the court concluded that the Szabos knew what property was being taken and did not allege the occurrence of some unanticipated consequence unknown to them at the time of the declaration, which would have explained the failure to file preliminary objections. The Szabos filed a timely notice of appeal to the Commonwealth Court raising two assertions of error: "(1) whether the trial court erred in holding the declaration of taking filed by the Department did not deprive the Szabos of adequate notice of the extent or effect of the taking; and (2) whether the Szabos' failure to file preliminary objections constituted waiver of their right to raise the inadequacy of the plan attached to the declaration of taking." Szabo v. Com., Dep't of Transp. , 159 A.3d 604, 606 (Pa. Cmwlth. 2017).
The trial court did not reference the record or make a specific finding of fact explaining which property the Szabos knew PennDOT was taking. Further, in its conclusion the trial court acknowledged while the Eminent Domain Code "is quite clear concerning the applicable procedure for challenging a declaration of taking ... via preliminary objections ... a very limited exception to this requirement exists in situations where the declaration fails to give the landowner sufficient notice of the extent or effect of a taking." Trial Ct. Op., 8/17/15, at 5. Nevertheless, the trial court concluded the facts of this case did not warrant the exception.
The Commonwealth Court reversed the decision of the trial court in a unanimous opinion and remanded for an evidentiary hearing to determine the property interests affected by the taking and the proper compensation for the condemned property. The Commonwealth Court explained that Section 305 requires the condemnor to provide written notice within thirty days of the filing of a declaration of taking. To comply with the Code, notice must contain a reasonable identification of the property. 26 Pa.C.S. § 305(c)(8). The court explained that in Department of General Services , it held that a landowner did not waive the issue of de facto taking by failing to raise that issue in preliminary objections where "the Declaration of Taking did not adequately establish the extent or effect of the taking." Szabo , 159 A.3d at 608 (citing Dep't of Gen. Servs. , 714 A.2d at 1162 ). In that case, the Department of General Services (DGS) seized a right of way from a condemnee's riverfront property, limiting access to the section of remaining property which adjoined the river. DGS agreed to perform a site survey, but did not do so, and the condemnee requested an evidentiary hearing. DGS asserted that the issue of de facto condemnation should have been raised through preliminary objections and was therefore waived. The Commonwealth Court held otherwise, citing the holding in Greenfield Township that "landowners who were unaware at the time a declaration of taking was filed that a portion of their property would be landlocked as a result of the condemnation, did not waive the issue in preliminary objections to the declaration of taking." Dep't of Gen. Servs. , 714 A.2d at 1162.
Here, PennDOT filed plans which illustrated the proposed taking and identified the parties and their affected property interests. The Commonwealth Court explained that the plans incorrectly identified property owned by the Szabos as owned by other parties. The Szabos only discovered this error after PennDOT began construction and the Szabos hired a surveyor. Accordingly, because the Department failed to accurately identify the property that was part of the taking, the Commonwealth Court concluded PennDOT took from the Szabos more than was indicated in the plans without providing adequate compensation.
Addressing the second argument, that of waiver, the Commonwealth Court noted that because PennDOT did not provide adequate notice, the Szabos' subsequent discovery resulted in a de facto taking. The Szabos argued that under the trial court's holding, they, not PennDOT, bore the burden of preparing accurate plans. This would force a condemnee to file preliminary objections in every case regardless of whether a basis existed at the time, so as to avoid waiver. PennDOT reiterated that it had provided proper notice and argued that Section 306 provides that preliminary objections are the exclusive means of challenging the nature and extent of the property interest by the condemnee. Accordingly, the Szabos should not be afforded an evidentiary hearing. Again, citing Department of General Services , the Commonwealth Court noted that "the courts have recognized that a condemnee does not waive such issues where the declaration of taking does not adequately establish the extent or effect of the taking." Szabo , 159 A.3d at 608. Here, PennDOT did not adequately identify the property. Therefore, the plans did not adequately establish the extent or effect of the taking, and the Szabos did not waive their right to raise the issue. Accordingly, the Commonwealth Court remanded for an evidentiary hearing.
"[T]he law is well settled that when an entity clothed with the power of eminent domain has, by even a non-appropriative act, substantially deprived an owner of the beneficial use and enjoyment of his property, a de facto taking will be deemed to have occurred." Greenfield Twp. , 582 A.2d at 44.
PennDOT filed a petition for allowance of appeal raising two questions, which this Court granted. The Department asks this Court:
(1) By failing to file preliminary objections pursuant to section 306 of the Eminent Domain Code, 26 Pa.C.S. 306, did [Appellees] waive their right to assert ownership and seek additional just compensation for the condemnation of two parcels which were allegedly mistakenly depicted as belonging to two other legal entities in plans attached to the declaration of taking?
(2) Did [Appellant's] alleged mistake in the plans attached to a declaration of taking, constitute the failure to adequately establish the extent or effect of the taking, thereby excusing [appellees] from filing preliminary objections under section 306 of the Eminent Domain Code. See Pennsylvania Dep't Gen. Servs. , 714 A.2d 1159 (Pa. Cmwlth. 1998) and Pennsylvania Dep't Trans. v. Greenfield Twp. Prop. Owners , 135 Pa.Cmwlth. 113, 582 A.2d 41 (1990) ?
Szabo v. Com., Dep't of Transp. , 643 Pa. 128, 172 A.3d 1109 (2017) (per curiam ).
The gravamen of PennDOT's argument is that it provided sufficient notice under Section 305 because it outlined the entirety of land seized for the project in the declaration of taking served on the Szabos. PennDOT argues that although the parcels were taken at different times, through separate proceedings, the Szabos were on notice of the property taken and should have challenged the inaccuracies through preliminary objections. Notice under Section 305 is directly at issue; accordingly, we will initially address the second of Petitioner's questions because its resolution will bear upon the first.
In an appeal from an eminent domain proceeding, our review is limited to determining whether the lower court abused its discretion or committed an error of law or whether the findings of fact were supported by substantial evidence. In re Condemnation for State Route 79 , 568 Pa. 546, 798 A.2d 725, 730 n.4 (2002).
The Eminent Domain Code provides in pertinent part:
§ 302. Declaration of taking
...
(b) Contents.-- The declaration of taking shall be in writing...and contain the following.
...
(5) a description of the property to be condemned, sufficient for identification specifying the municipal corporation and the county or counties where the property taken is located, a reference to the place of recording in
the office of the recorder of deeds of plans showing the property condemned or a statement that plans showing the property condemned are on the same day being lodged for record or filed in the office of the recorder of deeds in the county in accordance with section 304 (relating to recording notice of condemnation).
26 Pa.C.S. § 302(b)(5). In concert with Section 302, Section 305 states, in pertinent part:
§ 305. Notice to condemnee
...
(c) Contents.-- The notice to be given the condemnee shall state:
...
(8) A statement that the condemnee's property has been condemned and a reasonable identification of the property.
(9) In the case of a partial taking, a plot plan showing the condemnee's entire property and the area taken.
(10) A statement of the nature of the title acquired.
(11) A statement specifying where a plan showing the condemned property may be inspected in the county in which the property taken is located.
...
(13) A statement that, if the condemnee wishes to challenge the power or the right of the condemnor to appropriate the condemned property, the sufficiency of the security, the procedure followed by the condemnor or the declaration of taking, the condemnee must file preliminary objections within 30 days after being served with notice of condemnation.
26 Pa.C.S. § 305(c)(8),(9), (10), (11), (13).
The Commonwealth Court has recognized that, "[t]he plot plans and property plat filed with the declaration of taking and served upon a condemnee are part of and indeed, the heart of a declaration of taking. It is only by reference to such plans that one can determine what property is the subject of condemnation and, in the case of a partial taking, what part of the property has been taken." West Whiteland Assocs. v. Com. Dep't of Transp. , 690 A.2d 1266 (Pa. Cmwlth. 1997) (citing Milford Traumbauersville Area Sewer Auth. v. Approximately 0.753 Acres of Land , 25 Pa.Cmwlth. 13, 358 A.2d 450 (1976) ). "We have previously recognized that the nature of the property interest a party possesses, if any, in an eminent domain proceeding, is properly raised by way of preliminary objections. And the failure to raise the issue by means of preliminary objections constitutes a waiver of such issue." In re Condemnation by Com., Dep't of Transp. , 112 Pa.Cmwlth. 368, 535 A.2d 1210, 1214 (1988) ( Bernstein Appeal ) (internal citations omitted). However, in limited cases, a condemnee who does not file preliminary objections may still be afforded relief when the "damage which occurred to the property as a result of the condemnation activity became apparent two years [a]fter the Amended Declaration of Taking was filed," City of Pittsburgh v. Gold , 37 Pa.Cmwlth. 438, 390 A.2d 1373, 1376 (1978), or where the condemnees "were unaware that their property had been landlocked," at the time of declaration and "were not parties to the proceeding" where PennDOT condemned neighboring property to provide access. Greenfield Twp. , 582 A.2d at 44.
Instantly, PennDOT maintains that the Szabos waived their right to assert ownership and seek additional just compensation. PennDOT contends that Section 306 clearly provides, "filing preliminary objections within 30 days of notice of the condemnation, is the exclusive means available to challenge the nature and extent of [the] property interest held by [the] condemnee at the time of condemnation." Appellant's Brief at 11 (citing West Whiteland , 690 A.2d at 1269-70 ). The description of property to be condemned is so basic to a condemnation case, that it must be decided at the earliest possible stage so as to avoid potential prejudice to the condemnor. See Id. ("[t]o raise the size of the property condemned after a petition for appointment of viewers has been filed can result in substantial prejudice to the condemnor."). PennDOT notes that under Section 307(c)(3), "[i]n no event shall the condemnee be compelled to pay back to the condemnor the compensation paid under subsection (a) or (b), even if the amount of just compensation as finally determined is less than the compensation paid." 26 Pa.C.S. § 307(c)(3).
PennDOT avers that subject to West Whiteland and Bernstein Appeal , which concern challenges to the extent and nature of property interests acquired via eminent domain, the Szabos claims are waived. In Bernstein Appeal , the Commonwealth filed preliminary objections to the condemnee's petition for appointment of viewers, asserting waiver. The matter began in 1971 when PennDOT condemned an easement interest for construction of the Vine Street Expressway. PennDOT revised the plan and filed a second taking on July 25, 1984, taking the fee title underlying the easement. The condemnees did not file preliminary objections and instead petitioned for the appointment of a board of viewers. PennDOT filed preliminary objections, and the condemnees answered, averring that PennDOT had abandoned the original easement by changing its planned use, and that the new use as a parking garage was not a valid transportation purpose. At issue in that case was whether these claims were waived for failure to file preliminary objections. The court noted that "the nature of the property interest a party possesses, if any, in an eminent domain proceeding is properly raised by way of preliminary objections. And the failure to raise the issue by means of preliminary objections constitutes a waiver of such issues." Bernstein Appeal , 535 A.2d at 1214 (internal citations omitted). Because the issues challenged the condemnor's power to acquire the premises, they should have been raised by way of preliminary objections and the court found them waived.
In West Whiteland , the Commonwealth Court was asked to determine whether a condemnee was required to raise the unity of purpose doctrine set forth in then-Section 605 through preliminary objections. In 1989, PennDOT filed a notice of taking for 23.866 acres of unimproved property from a 71.526 acre parcel. The condemnee did not file preliminary objections. Four years later, the condemnee petitioned for the appointment of a board of viewers. At the hearing, the condemnee's witness testified that the property before condemnation was actually 179 acres based upon the unity of purpose doctrine. The board based its report upon the 179 acre parcel, and the trial court affirmed. The Commonwealth Court reversed, accepting PennDOT's argument that it had "served on Condemnee a plot plan and property plat which showed the Condemnee's entire property before condemnation was 71.526 acres, the area taken was 23.866 acres, and the after condemnation area was 47.66 acres." West Whiteland , 690 A.2d at 1268. Noting that "[t]he plot plans and property plat filed with the declaration of taking and served upon a condemnee are part of and indeed, the heart of a declaration of taking," and with citation to Bernstein Appeal , the court held that the trial court erred in allowing the condemnee to assert unity of purpose after thirty days.
Section 705 (previously 605) addresses unity of purpose and provides:
§ 705. Contiguous tracts and unity of use
Where all or a part of several contiguous tracts in substantially identical ownership is condemned or a part of several noncontiguous tracts in substantially identical ownership which are used together for a unified purpose is condemned, damages shall be assessed as if the tracts were one parcel.
26 Pa.C.S. § 705.
Here, PennDOT asserts the plans clearly depict Edward Courtney, Jr. and Susan Courtney and Peters Township to be the owners, respectively, of Parcels 1 and 9. Thus, this clear error should have been resolved through preliminary objections. PennDOT further avers notice was proper because it adequately established the extent or effect of the taking. It contends the Szabos had notice of the property to be condemned for the highway project after six months of prior settlement negotiations from June 2012 until the declaration of taking was filed in January 2013. Because the original and revised plans depict the parcels to be condemned, they satisfy the Section 305(c)(8)-(11) requirements for notice. Further, PennDOT distinguishes the instant case from Department of General Services and Greenfield Township , which involved de facto takings. It avers that in each case, the condemnees failed to file preliminary objections because they were unaware and could not have known at the time of the taking that their properties would become landlocked. PennDOT summarizes the holdings as such: "a condemnee may file preliminary objections more than 30 days after a taking if condemnees could not have known that additional property not identified in the declaration of taking would be taken as a consequence of being landlocked." Appellant's Brief at 21. Returning to the instant factual situation, PennDOT recounts that the Szabos were aware of the property being condemned, filed a petition for appointment of board of viewers, accepted compensation for Parcel 5, and did not raise any issue regarding the ownership of Parcels 1 and 9 until May 13, 2015, seventeen months after they had filed for appointment of a board of viewers.
The Szabos contend that PennDOT perpetrated a de facto taking of Parcels 1 and 9 when it did not include them in the de jure declaration of taking for Parcel 5 and identified them as being owned by other parties. They note that PennDOT complied with Section 305 notice when it filed the Declaration of Taking for Parcel 5 on January 10, 2013. However, Parcel 1 was condemned on November 8, 2012, and Peters Township conveyed Parcel 9 to PennDOT by deed in lieu of condemnation, recorded on June 26, 2012. The Szabos explain that their declaration of taking did not mention either of these dates, or comply with the requirements of Section 305 for Parcels 1 and 9. They note that whether service of a notice of condemnation complied with the explicit requirements of the Code is a pure question of law, and the evidence shows that the declaration of taking filed on January 10, 2013, condemned portions of Parcel 5 only.
The Szabos assert that errors inherent in the plans provided by PennDOT failed to provide notice and adequately establish the extent or effect of the taking. They note that "a landowner's failure to file preliminary objections to a declaration of taking of one portion of his property does not preclude the subsequent allegation of a de facto taking of another portion of his property." Snitzer, Pennsylvania Eminent Domain , § 3.6.1, p. 69 (2017 ed.) (citing In re Condemnation by Com., Dep't of Transp. (Saul) , 98 Pa.Cmwlth. 527, 512 A.2d 79 (1986) ). When a landowner is unaware at the time the declaration of taking is filed that a subsequent de facto taking of another property they owned would occur, the declaration of taking failed to adequately establish the extent or effect of the taking. In re Com., Dep't of Gen. Servs. , 714 A.2d 1159 (Pa. Cmwlth. 1998). The Szabos contend that PennDOT's argument is based upon two faulty premises. The first is that the issues raised are related to the declaration of taking and filing which condemned Parcel 5, and the second is that the Parcel 5 condemnation plan provided proper notice of the condemnation for Parcel 1 and 9. The Szabos explain that the declaration of taking filed on January 10, 2013, never stated or implied that Parcels 1 and 9 were related to the de jure condemnation action. Thus, their issue of ownership is not related to the Parcel 5 declaration of taking.
Second, the Szabos assert the revised acquisition plan did not provide constructive notice that PennDOT condemned Parcels 1 and 9. "[L]imitation on owner's right to claim damages in condemnation cannot begin to run until after the owner has had notice, actual or constructive, that his property has been condemned." Strong Appeal , 400 Pa. 51, 161 A.2d 380, 384 (1960). Further, the Szabos emphasize that the state and federal constitutions protect property rights. They equate this case with Strong Appeal and Pagni v. Commonwealth , 179 Pa.Super. 213, 116 A.2d 294 (1955), where statutes of limitations were deemed inapplicable due to improper notice.
The Fifth Amendment to the United States Constitution provides, in pertinent part:
No person shall be ... deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
U.S. Const. amend. V.
Article 1, Section 10 of the Pennsylvania Constitution provides, in pertinent part:
[N]or shall private property be taken or applied to public use, without authority of law and without just compensation being first made or secured.
PA. Const. art. 1, § 10.
In Strong Appeal , the Commonwealth approved a highway expansion plan in 1924, but did not act upon the plan until 1950. Under then-existing law, Section 61 allowed the Commissioner of Highways to divert a "dangerous" or "inconvenient" road with a plan approved by the governor and filed with the Department of Highways in Harrisburg. 36 P.S. § 61. The Commonwealth argued that the six-year statute of limitations barred the petition for damages, and the condemnees countered that they did not have adequate notice of the taking, which was filed in Harrisburg. Noting that Article 1, Section 10 of our Constitution provides that just compensation must be secured under authority of law for the public taking of property, this Court held that a limitation upon an owner's right to claim damages in condemnation cannot begin to run until he has had notice, actual or constructive, that his property has been condemned. This Court explained "[w]e are of the opinion that the constitutional requirements of just compensation outweigh the Statute of Limitations in this type of case and require actual notice such as entry on the land or the giving of a bond to the landowner." Strong Appeal , 161 A.2d at 383. Further, " ‘[t]he fundamental requirement of due process of law is the opportunity to be heard... [which] has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest.’ " Id. (quoting Mullane v. Central Hanover Bank & Trust Co. , 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950) ).
In Pagni , the Commonwealth provided notice and recorded plans in 1942 for the possibility of future road expansion. However, it did not act upon those plans until 1948, by which time the six-year statute of limitations to challenge the taking had run. The Commonwealth argued that resulting challenges were waived. The Superior Court held otherwise, noting that "[s]tatutes concerning eminent domain are to be strictly construed," and "[i]t is a fundamental provision of both our state and federal constitutions that no person shall be deprived of property except by the law of the land or due process of law. Without due process of law the right to property cannot be said to exist." Id. at 295-96 (quoting Hess v. Westerwick , 366 Pa. 90, 76 A.2d 745, 748 (1950) ). The Superior Court stated that although "the Commonwealth took no action and made no statements which would deceive appellees [the property owners], [t]he deception resulted from its failure to act, and the Commonwealth cannot now take advantage of the statutory bar." Pagni , 116 A.2d at 296. Noting that the underlying policy behind statutes of limitations is to prohibit unreasonable delay, the court explained, "the Appellees' inaction could not have been unreasonable when they had no knowledge that they had any right which was to be enforced." Id. at 297. Accordingly, the Superior Court held that the claim was not barred.
The Szabos, assert that here, as in Strong Appeal and Pagni , the Commonwealth agency did not adequately provide notice of the taking. As a result, their petition for an evidentiary hearing should not have been denied for failure to raise it within the thirty-day timeframe for filing of preliminary objections.
We find this argument compelling given the fundamental protections of a person's property enumerated in our Constitution. Article 1, Section 1 includes "[a]cquiring, possessing and protecting property" among the inherent rights of mankind, and Article 1 Section 10, dictates that "private property [shall not] be taken or applied to public use without authority of law and without just compensation being first made or secured." Pa. Const. Art. 1 §§ 1, 10. These tenets have been codified by the General Assembly, which directs that "provisions conferring the power of eminent domain" are to be strictly construed under the rules of statutory interpretation. 1 Pa.C.S. § 1928(b)(4). The Eminent Domain Code must be applied in concert with these principles.
Section 305 states that written notice shall be given to the condemnee within thirty days of the filing of a declaration of taking. 26 Pa.C.S. § 305. Notice shall include "in the case of a partial taking, a plot plan showing the condemnee's entire property and the area taken." 26 Pa.C.S. § 305(9). The Szabos state, and we agree, that PennDOT did not satisfy this requirement when it served a plot plan informing them of the section of property taken from Parcel 5, but not Parcels 1 and 9. The plans provided to the Szabos did not show which portions of Parcels 1 and 9 were to be condemned, and did not identify that land as owned by the Szabos. As the Pagni court explained, "where, as here, the party (Commonwealth) setting up the limitation has been solely responsible for the delay it will be prevented from taking this advantage." Pagni , 116 A.2d at 296. "Ordinarily in this type of case the person deceived has been led into a sense of security ... by actions or statements of the party setting up the statute." Id. Given the extensive period of time in which the parties were negotiating for purchase, and the language of Section 305 providing that condemnees' entire property must be shown to them with the condemned portions outlined, we conclude that just such an event occurred in this case.
The dissent questions whether PennDOT "was required to give Szabos notice of the condemnation of an adjacent property owner's parcel." Dissenting Op. at 74. However, as Justice Wecht notes, the statutory provisions do not contain "a clear account of how to proceed under these circumstances." Concurring Op. at 68. Therefore, while it may be unclear whether it was the Szabos or PennDOT who bore the burden to correctly identify the property lines on the initial plot plan, Section 305 does not require the condemned property owner to file preliminary objections to inaccuracies on a plot plan having no relation to the taking. As the Szabos had no objection to the condemned portion of Parcel 5 on the plot plan, no preliminary objections were filed at that juncture.
Further, PennDOT's reliance on West Whiteland is misplaced. Significantly, in that case, PennDOT correctly identified the owner of the condemned property in the property plans and plat it provided in accordance with then-Section 405. West Whiteland , 690 A.2d at 1267. This effectively placed the condemnee on notice of his property interests which were impacted by the proposed taking. Four years later, the condemnee attempted to attach un-condemned property to the existing taking via the unity of purpose doctrine as provided in then-Section 605. The condemnee, although cognizant of both the taking and its property interests at stake, failed to challenge unity of purpose in timely preliminary objections. Under those circumstances, the Commonwealth Court held that the condemnee was required to file preliminary objections to the size of the property taken, demonstrating that un-condemned property should nonetheless be included. Accordingly, there, the court limited the evidence to the property plan and property plat filed by PennDOT and served on the condemnee. West Whiteland , 690 A.2d at 1271.
Here, PennDOT bore the burden of accurately notifying the owners of land subject to the taking so that they could protect their interests and secure just compensation. Although harmless procedural irregularities "will not set aside a condemnation decision," Norberry One Condominium Association v. PennDOT , 805 A.2d 59, 67 (Pa. Cmwlth. 2002), the procedural defect here went to the "heart of a declaration of taking." West Whiteland , 690 A.2d at 1269. By inadequately identifying the extent or effect of the taking, PennDOT misled the Szabos and denied them an opportunity to secure just compensation. To deny them the opportunity for a hearing would place the burden of identifying condemned property squarely on the shoulders of private landowners and would contradict basic property rights ingrained in our Constitution.
The dissent attempts to transfer this burden to the condemnees by noting, "[i]n property boundary disputes outside eminent domain and condemnation proceedings, this Court and others have long held owners of land are presumed to know what they own." Dissenting Op. at 73 (citations omitted). As this case squarely involves condemnation proceedings pursuant to the Eminent Domain Code, such a presumption is inapplicable. Further, even if the Szabos had recognized PennDOT misidentified the owners of Parcels 1 and 9, there was no indication there was a taking from either of those parcels.
We affirm the decision of the Commonwealth Court and remand this matter so that the trial court can hold an evidentiary hearing to determine the property interests affected by the taking, and the board of viewers can determine the proper compensation for that property.
Chief Justice Saylor and Justice Baer join the Opinion Announcing Judgment of the Court.
Justice Wecht files a concurring opinion in which Justice Todd joins.
Justice Dougherty files a dissenting opinion in which Justice Donohue joins. CONCURRING OPINION
JUSTICE WECHT, Concurring
I agree that Stephen and Mary Szabo are entitled to an evidentiary hearing to clarify the property interests subject to the taking at issue in this case, in furtherance of their effort to determine the just compensation to which they are constitutionally entitled. The plan attached to the Pennsylvania Department of Transportation's declaration of taking omitted any indication that PennDOT's planned road expansion implicated not only parcel 5, which the Szabos undisputedly owned, but also adjacent parcels 1 and 9, the ownership and boundaries of which are disputed. Had PennDOT's declaration of taking informed the Szabos that the plan entailed utilizing portions of parcels 1 and 9, the Szabos reasonably might have been charged with recognizing sooner what only the commencement of construction ultimately revealed: that the plan did not accurately reflect the possible incursion upon their interests in the parcels designated 1 and 9, rendering PennDOT's proposed compensation insufficient.
See PA. Const. art. 1 § 10 ("[N]or shall private property be taken or applied to public use, without authority of law and without just compensation being first made or secured."); PA. Const. art 10 § 4 ("Municipal and other corporations invested with the privilege of taking private property for public use shall make just compensation for property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements and compensation shall be paid or secured before the taking, injury or destruction.").
For example, on the one hand, Szabos state they hired a surveyor after they saw construction activity taking place "on other property owned by the Szabos (Parcels 1 and 9)." Appellees' Brief at 5. This statement clearly implies Szabos believed they owned parcels 1 and 9 before they hired a surveyor. On the other hand, they assert that after they read the resulting survey, they realized for "the first time" the declaration of taking "did not identify all of the Szabos' property[,]" implying their lack of knowledge of the extent of their ownership and boundaries prior to that time. Id. at 6 (emphasis added). The latter interpretation is the one they presented to the trial court where, in essence, they alleged their surveyor informed them they owned parcels 1 and 9 in addition to parcel 5. See Petition for Evidentiary Hearing, 5/4/15, at ¶ 7. PennDOT disputes Szabos' claim of ownership to parcels 1 and 9, as reflected in the information contained in the declaration of taking.
We are asked to consider whether the Szabos are entitled to an evidentiary hearing on their claims in this and other regards. The factual predicates for their claims are disputed, but these disputes played no role in the trial court's finding of waiver, except inasmuch as the court found that they encompassed the sort of matter that should have been raised in preliminary objections to the declaration itself. Since the factual assertions, as stated, were deemed insufficient to avoid waiver, the trial court effectively accepted them at face value. For purposes of analysis, I do the same.
Repealed by Section 5 of the Act of May 4, 2006, P.L. 112 and replaced by 26 Pa.C.S. § 306(a).
Notably, PennDOT's own plan hinted at uncertainty regarding the relevant boundaries and titles to the three parcels at issue. As the Opinion Announcing the Judgment of the Court ("OAJC") relates, PennDOT acknowledged in its plan that the depicted boundaries separating the three parcels were "probable [sic ] correct," that PennDOT had discovered errors in the chain of title, and that, despite these uncertainties, the lines "were not surveyed by the professional land surveyor responsible for the project." OAJC at 54 (quoting Declaration of Taking Property Plan, 12/3/2012, at Sheet 1 of 2). As well, the plan did not indicate that, before PennDOT served notice of the condemnation of parcel 5 upon the Szabos, parcel 1 previously had been condemned by PennDOT, and Peters Township had sold parcel 9 to PennDOT in lieu of condemnation. Id. at 54–55.
Under the Eminent Domain Code, 26 Pa.C.S. §§ 101, et seq. ("the Code"), PennDOT bore the legal burden of informing the Szabos of the full scope of the taking of their property. See 26 Pa.C.S. § 302(b) ; see also OAJC at 58–59. Given its acknowledged uncertainty regarding the property boundaries, PennDOT should have conducted a more penetrating investigation before filing the declaration. At a minimum, its plan should have indicated the full scope of the work upon all three parcels, if any, as a hedge against the plan's possibly flawed or inaccurate account of the three parcels' ownership. Instead, PennDOT served upon the Szabos a plan that informed them only of the portion of parcel 5 to be taken, leaving the Szabos no reason to anticipate that portions of parcels 1 and 9 also would be taken. To deny the Szabos just compensation for the entirety of their interests subject to the taking as a consequence of PennDOT's errors or omissions would turn the statutory scheme on its head in derogation of the time-honored rigor we demand of condemnors in exercising their constitutionally circumscribed power of eminent domain.
See 1 Pa.C.S. § 1928(b) (providing that "[a]ll provisions of a statute" "conferring the power of eminent domain" must be strictly construed); see also Pagni v. Commonwealth , 179 Pa.Super. 213, 116 A.2d 294, 295 (1955) ("Statutes concerning eminent domain are to be strictly construed.").
Our review in an appeal from an eminent domain proceeding is limited to determining whether the lower court abused its discretion or committed an error of law and whether the findings of fact were supported by substantial evidence. In re Condemnation for State Route 79 , 568 Pa. 546, 798 A.2d 725, 730 n.4 (2002). In my view, the evidence supported the trial court's findings, and the Commonwealth Court erroneously determined that because "the plans failed to accurately identify the property which was part of the taking" the condemnation took "more of Szabos' property than indicated in the plans" and thus, PennDOT "did not provide adequate notice of the extent and effect of the taking." Szabo v. Com., Dep't. of Transp. , 159 A.3d 604, 607 (Pa. Cmwlth. 2017).
I write separately because I believe that the OAJC's learned analysis identifies, but does not clearly resolve, irregularities in the case law under the Code that cannot be avoided in this case. The compensation issue here hinges upon a factual determination of the Szabos’ property interest relative to PennDOT's taking. The Commonwealth Court has held generally that questions pertaining to the nature and scope of property to be taken must be adjudicated by the Court of Common Pleas upon the timely filing of preliminary objections to the declaration of taking, and that the failure to raise such questions in that pleading, within the time constraints that apply, will result in waiver. See West Whiteland Assoc. v. Commonwealth, Dep't of Transp. , 690 A.2d 1266, 1269 (Pa. Cmwlth. 1997) ; In re Condemnation by the Commonwealth of Pa., Dep't of Transp., Appeal of Bernstein , 112 Pa.Cmwlth. 368, 535 A.2d 1210, 1214 (1988). However, the relief the Szabos seek, just compensation, is a matter excluded from the statutory procedure governing such preliminary objections. Instead, the power to determine compensation is delegated by statute in the first instance to a court-appointed board of viewers, and is subject to a distinct set of procedures under the Code. Further complicating matters, a board of viewers' jurisdiction is statutorily limited to assessing the value of a defined property interest that has been taken, and does not extend to fact-finding regarding the fact and extent of the taking itself.
Commonwealth Court case law under the Code sets something of a trap for the unsuspecting condemnee proceeding in good faith. Where, as here, the condemnee is provided no reason to raise a frontal challenge to the declaration of taking, the condemnee has no statutory warrant for filing preliminary objections, even if the condemnee anticipates the possibility of a subsequent challenge to the compensation that the condemnor provides. However, taking certain Commonwealth Court cases at face value, should subsequent events call into question the fairness of the compensation provided, the condemnee will find the courthouse door closed if his claim for compensation is founded upon a discrepancy in the original declaration and plan that implicates questions of ownership.
To cure this problem, we must look to the Eminent Domain Code, which by its terms "provides a complete and exclusive procedure and law to govern all condemnations of property for public purposes and the assessment of damages." 26 Pa.C.S. § 102. Chapter Three, entitled "Procedure to Condemn," outlines the process by which a condemning authority may exact a taking and the ways in which a condemnee may challenge the condemnor's authority to do so. Id. §§ 301-10. Chapter Five, "Procedure for Determining Damages," and Chapter Seven, "Just Compensation and Measure of Damages," outline procedures for valuing condemned property. Id. §§ 501-22, 701-16.
Section 302 of the Code specifies that "the power of condemnation given by law to a condemnor shall be effected only by the filing in court of a declaration of taking with the security required under section 303(a)." Id. § 302(a)(1). The declaration of taking must include, inter alia :
Section 303 of the Code provides that "every condemnor shall give security to effect the condemnation by filing with the declaration of taking its bond, without surety, to the Commonwealth for the use of the owner of the property interests condemned, the condition of which shall be that the condemnor shall pay the damages determined by law." 26 Pa.C.S. § 303(a). However, if "a condemnor has the power of taxation, it shall not be required to file a bond with the declaration of taking." Id. § 303(b)(1)
I note Szabos have always contended the property plan "is inaccurate in that it fails to show the entire property owned by Condemnees[.]" Petition for Evidentiary Hearing, 5/14/15 at ¶ 7, R.R. 117a. While Justice Wecht recognizes "the Szabos seek relief specifically due to a deficiency in the declaration," (Wecht J., concurring at 71), and that a challenge thereto must be raised via preliminary objections to the declaration, he also characterizes Szabos' claim as primarily one for just compensation and observes such claims must be raised in a petition for the appointment of viewers. Id. at 67–68. Notwithstanding the potentially unclear nature of the relief Szabos are seeking, and Justice Wecht's identification of "irregularities in the case law under the Code that cannot be avoided in this case" pertaining thereto, id. at 65–66, my review reveals the instant dispute is grounded primarily on the allegation the plans were erroneous at the time they were served on Szabos. I would hold when confronted with clearly erroneous or dubious descriptions of a condemnee's property in a declaration of taking, the condemnee is obligated to file preliminary objections thereto within 30 days.
(5) A description of the property condemned, sufficient for identification ..., a reference to the place of recording in the office of the recorder of deeds of plans showing the property condemned or a statement that plans showing the property condemned are on the same day being lodged for record or filed in the office of the recorder of deeds[;]
(7) A statement specifying where a plan showing the condemned property may be inspected in the county in which the property taken is located[; and]
(8) A statement of how just compensation has been made or secured.
Id. § 302(b). Upon such a filing, title to the condemned property passes to the condemnor, who is then entitled to possession, and the condemnee is entitled to compensation. Id. § 302(a)(2). The condemnor must serve written notice of the filing of the declaration upon the owner of the condemned property within thirty days of its filing.
The condemnee, in turn, may file preliminary objections to the declaration within thirty days after service of notice of the taking. However, the subject matter of the permitted preliminary objections is limited to the following:
(i) The power or right of the condemnor to appropriate the condemned property unless it has been previously adjudicated.
(ii) The sufficiency of the security.
(iii) The declaration of taking.
(iv) Any other procedure followed by the condemnor.
26 Pa.C.S. § 306(a)(3). While "[f]ailure to raise by preliminary objections the issues listed in subsection (a) shall constitute a waiver," id. § 306(b), the Commonwealth Court has held that, where the alleged condemnee was not aware of the effect of the condemnor's action, waiver will not be imposed for failing to file preliminary objections. See Commonwealth, Dep't of Transp. v. Greenfield Twp.-Property Owners , 135 Pa.Cmwlth. 113, 582 A.2d 41 (1990) ; City of Pittsburgh v. Gold , 37 Pa.Cmwlth. 438, 390 A.2d 1373 (1978). Subsection 306(b) also unambiguously provides that "[i]ssues of compensation may not be raised by preliminary objections ." 26 Pa.C.S. § 306(b) (emphasis added). Rather, Chapter Five of the Code outlines the exclusive process for raising compensation-related claims. If the condemnor and the condemnee cannot agree as to compensation, "[a] condemnor, condemnee or displaced person may file a petition requesting the appointment of viewers." Id. §§ 501-02. Upon filing such a petition, "unless preliminary objections [under Chapter Three] ... warranting delay are pending, [the court] shall promptly appoint three viewers who shall view the premises, hold hearings and file a report." Id. § 504(a)(1). The board of viewers' report must include, inter alia , "a statement of the total amount of damages and the distribution between or among the several claimants." Id. § 512.
Greenfield Township concerned an alleged de facto taking. A de facto taking occurs where "an entity clothed with the power of eminent domain has, by even a non-appropriative act, substantially deprived an owner of the beneficial use and enjoyment of his property." See OAJC at 57 & n.7 (quoting Greenfield Twp. , 582 A.2d at 44 ); see also Gold , 390 A.2d at 1376 ("Article X, Section 4 of the Pennsylvania Constitution provides recovery by an owner for the injury or destruction of his property by a municipality for a public use even where there is no taking and where neither negligence nor nuisance occasioned the injury."). Thus, a "formal divestiture of an owner's title" is not required to cause a de facto taking. Greenfield Twp. , 582 A.2d at 44 ; see 26 Pa.C.S. § 502(c) (allowing a petition for appointment of viewers where a condemnation is alleged to have occurred but "no declaration of taking has been filed"). In Greenfield Township , the court declined to impose waiver for failure to file preliminary objections to a declaration, because the damages asserted involved the landlocking of property that the condemnees did not anticipate based upon the plan provided by the condemnor.
I disagree with Justice Wecht's position an analysis of whether a de facto taking occurred is unwarranted because it is outside the questions upon which we granted review. Concurring Opinion at 73, n.8. Both Greenfield Twp. and Dep't Gen. Servs. involved de facto takings.
Chapter 5 further provides a procedure for the condemnor to oppose the appointment of viewers. "Any objection to the appointment of viewers may be raised by preliminary objections filed within 30 days" of the filing of the petition. Id. § 504(d). "Objections to the form of the petition or the appointment or the qualifications of the viewers in any proceeding or to the legal sufficiency or factual basis of a petition ... are waived unless included in preliminary objections [filed by the condemnor]." Id. (emphasis added). If an answer to those preliminary objections is filed and "an issue of fact is raised, the court shall conduct an evidentiary hearing or order that evidence be taken by deposition or otherwise, but in no event shall evidence be taken by the viewers on this issue ." Id. § 504(d)(5) (emphasis added). Thus, a condemnor is entitled to challenge, inter alia , the factual underpinnings of a condemnee's claim for compensation only by preliminary objections to a petition for the appointment of viewers. Once the petition is granted—or after thirty days if no objections are filed—the party objecting to the appointment of viewers waives its opportunity to do so and there exists no express statutory basis for an evidentiary hearing.
Conspicuously absent from these complementary provisions is a clear account of how to proceed under these circumstances. The plan provided to the Szabos allegedly misstated or omitted information critical to the Szabos' understanding of the property subject to the taking, principally by omitting any illustration of the effect of the intended construction upon parcels 1 and 9. Thus, without any reason to suspect that PennDOT's plans implicated interests beyond those designated on the plan with respect to parcel 5, the Szabos did not file preliminary objections, leaving them only the option to challenge the compensation for the property as delineated in the plan . In due course, the Szabos filed a petition for the appointment of viewers. However, in that petition, which evidently was filed before PennDOT commenced construction, the Szabos made no mention of any interests outside parcel 5. When construction activities raised questions regarding their possible interests in parcels 1 and 9, the Szabos promptly filed a petition for an evidentiary hearing to address those questions.
Although the OAJC admirably seeks to reconcile available Commonwealth Court case law with the Code, I am unpersuaded. While the Code's structure suggests that the form of relief sought should dictate the procedure utilized, the case law more clearly focuses upon the basis upon which relief is sought. The Code plainly distinguishes structurally and by its terms between challenges seeking reversal of a condemnation and "issues of compensation." Compare id . §§ 306(a)(3)(i)-(iv) with id . § 306(b). Notably, the chapter pertaining to each provides a distinct process for addressing factual issues that arise in resolving the respective challenges. In each chapter, fact-finding is entrusted to the Court of Common Pleas. The board of viewers, vested only with authority to calculate compensation, expressly is precluded from addressing issues of fact that arise in connection with that inquiry. 26 Pa.C.S. § 504(d)(5).
The distinction between these two functions comports with the policy reflected in the Code, which seeks to balance the condemnor's authority to take land expeditiously for the public good against the property owner's right to just compensation. In furtherance of these goals, the Code requires a condemnee to raise any direct challenge to a condemnation within thirty days of notice via preliminary objections, ensuring expeditious determination of the condemnor's right to title. However, the Code provides a separate framework for a condemnee to challenge the amount of just compensation without the strictures of a compressed time period. In this way, the Code balances expeditiousness in the transfer of title where it serves the public interest with an adequate process for determining just compensation for landowners who are deprived of their property rights. Thus, the form of relief, rather than the particular factual or legal predicates upon which relief is sought, must dictate the procedure.
This analysis is in tension with the trial court's and PennDOT's reliance upon West Whiteland . At issue in that case was the condemnee's desire to apply the unity of purpose doctrine, which provided that, "[w]here all or a part of several contiguous tracts owned by one owner is condemned or a part of several non-contiguous tracts owned by one owner which are used for a unified purpose is condemned, damages shall be assessed as if such tracts were one parcel." 26 P.S. § 1-605 (repealed). PennDOT filed a declaration of taking indicating its intention to condemn approximately twenty-four acres of a seventy-one-acre parcel owned by the condemnee, leaving the condemnee approximately forty-seven acres. The condemnee did not file preliminary objections to the declaration. Several years later, condemnee filed a timely petition for the appointment of viewers, wherein condemnee requested additional compensation, but did not suggest any dispute regarding the size of the affected parcel. However, before the board of viewers, condemnee's witnesses testified that the size of the relevant property prior to the taking in fact comprised 179 acres, based upon the unity of purpose doctrine, and sought on that basis to modify compensation in condemnee's favor.
The unity of purpose doctrine now is found in 26 Pa.C.S. § 705.
As the OAJC acknowledges, the maps contained precise information showing errors in the chain of title for Szabos' property, including distance errors and failure to record an outsale.
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PennDOT argued that condemnee should have raised the unity of purpose doctrine in preliminary objections to the declaration, because it implicated the nature of the property subject to the taking. Thus, PennDOT argued, the condemnee's invocation of the doctrine was untimely and waived. The Commonwealth Court agreed, quoting its earlier decision in Appeal of Bernstein for the proposition that "the nature of the property interest a party possesses, if any, in an eminent domain proceeding is properly raised by preliminary objections, and the failure to raise the issue by means of preliminary objections constitutes a waiver of such issues." West Whiteland Assocs. , 690 A.2d at 1269 (quoting Appeal of Bernstein , 535 A.2d at 1214 ). Thus, notwithstanding that condemnee's claims pertained only to just compensation, the court effectively held that any property-related concerns that might later inform a compensation claim must be raised in preliminary objections to the declaration, even though a court hearing such objections may not consider questions of compensation.
Notably, while it has never expressly embraced the remedy-dictates-procedure approach that I believe best reflects the legislative intent reflected in the Code, this Court nonetheless has leaned toward it, and it did so in a case that postdates West Whiteland by over fifteen years. In In re Condemnation by the Commonwealth of Pa., Dep't of Transp., of Right of Way for State Route 79 , 568 Pa. 546, 798 A.2d 725 (2002) (hereinafter " Sluciak "), condemnee Sluciak owned a parcel of land that included frontage along a main public road. Despite the frontage, Sluciak did not have his own driveway; instead, he accessed the main road by using a driveway running over the corner of his neighbor's adjacent property. Seeking to expand an interstate on-ramp, PennDOT filed a declaration condemning all of Sluciak's property fronting the road. Sluciak did not file preliminary objections to the declaration of taking. PennDOT provided compensation as required, but Sluciak petitioned the court to appoint viewers, arguing that the compensation was insufficient because the taking landlocked his property. The board of viewers found that Sluciak's property was not landlocked because he held an easement by necessity in his neighbor's driveway, and the board upheld the compensation provided.
Sluciak appealed the board's decision to the Court of Common Pleas. PennDOT moved to dismiss Sluciak's appeal on the basis that Sluciak had waived his claims because he had not raised the landlocking and access issues in preliminary objections to the declaration of taking. The court denied the motion to dismiss, but ultimately agreed with the viewers that Sluciak's property was not landlocked and set a date for a jury trial as to damages. Sluciak appealed. Again, PennDOT argued waiver, but the Commonwealth Court held that Sluciak had not waived his request for additional compensation by failing to raise it by preliminary objection. The Commonwealth Court also ruled in Sluciak's favor on the merits, and PennDOT sought allowance of appeal in this Court, which we granted.
In again pressing its waiver argument, PennDOT relied upon the Commonwealth Court's ruling in West Whiteland , which it argued compelled the conclusion that, because Sluciak's challenge depended on the property interests taken, it amounted to a challenge to the declaration of taking, which he failed to raise by preliminary objection. Sluciak disagreed, arguing that, because he sought to challenge the compensation, he neither was obligated nor permitted to raise his claim in preliminary objections.
This Court agreed generally that "[p]reliminary objections under ... the Code are intended as a procedure to resolve expeditiously all legal and factual challenges to the declaration of taking," Sluciak , 798 A.2d at 731. However, the Court nonetheless rejected PennDOT's waiver argument because Sluciak's "claim went to the value of his remaining property after the condemnation." Id. at 732. Specifically, Sluciak contended that the value of his remaining property was diminished due to a lack of legal access to the road. We held that this was "not a matter that [the Code] designates must be raised by preliminary objections." Id.
Here, again, PennDOT relies upon West Whiteland to support its claim that, because the nature and extent of the property taken is a predicate question in the instant compensation challenge, the Szabos' failure to file preliminary objections to the declaration waived that challenge. In so doing, PennDOT effectively insists that the predicate for relief sought, rather than the nature of that relief, determines when a condemnee must raise a challenge, on peril of waiver.
The OAJC rejects PennDOT's reliance upon West Whiteland by attempting to distinguish it from the instant case. The OAJC observes that, in West Whiteland , the condemnee undisputedly knew all of the information necessary to seek application of the unity of purpose doctrine within the time allotted for preliminary objections to the declaration. OAJC at 64. While the Szabos seek relief specifically due to a deficiency in the declaration, in West Whiteland PennDOT undisputedly had accurately described the parcel, and the portion thereof, that it sought to condemn. Thus, the OAJC concludes that the condemnee in West Whiteland was not similarly situated to the Szabos in this case, where their core contention is that the declaration did not give them all of the information they required to understand the full effect of the intended taking. In my view, while this distinction has some superficial appeal, it ultimately lacks any material difference.
In both cases, the condemnee effectively accepted the fact of the taking, and acceded to PennDOT's authority to effectuate it. Thus, neither party objected to the validity of the taking or the vesting of title in PennDOT, which are the proper subjects of preliminary objections to the declaration, as noted in Sluciak . Rather, in each case, the condemnee raised matters ancillary to the taking solely in connection with calculating compensation. I discern no statutory basis to suggest that the mere ability to identify compensation-related questions during the short time period for objecting to the taking is dispositive of whether the condemnee must raise (or is even permitted by statute to raise) such questions in a context reserved for challenges to the taking itself .
Moreover, it is not at all clear to me that the OAJC's attempt to distinguish West Whiteland can be reconciled with our later decision in Sluciak . The facts in Sluciak strike me as more consistent with West Whiteland than with this case. In Sluciak , as in West Whiteland , the condemnee possessed all of the information at the time of the taking that he later relied upon in seeking to modify compensation. The property lines, the extent of the taking, even the long-standing utilization of the neighbor's driveway, all were within the condemnee's knowledge when the declaration of taking was served. Ultimately, we rejected waiver not because some critical fact had been omitted or was unavailable at the time of the declaration, but rather because the question of legal access was of concern solely for purposes of valuing the condemnee's remaining property, and therefore was "not a matter that ... must be raised by preliminary objections." Sluciak , 798 A.2d at 732. While it did not do so explicitly, I believe that Sluciak effectively abrogated West Whiteland , at least to the extent that West Whiteland can be read to require that title and use-related questions that are raised solely in connection with determining just compensation nonetheless must be raised in the first instance in preliminary objections to the declaration of taking. Realizing belatedly that they had failed to apprehend the full effect of PennDOT's taking, the Szabos chose the best of only bad options. Presumably recognizing that their issues concerning the imposition upon their interests in parcels 1 and 9 entailed factual claims that PennDOT would dispute, they did not ask the viewers to answer those questions. Instead, they filed a petition for an evidentiary hearing before the Common Pleas Court. This necessarily improvisational step did not depart substantially in effect from a hypothetical scenario in which they discovered the issue with parcels 1 and 9 before filing their petition for the appointment of viewers and included in their petition factual assertions about PennDOT's incursions upon interests not delineated. PennDOT then would have been on notice of the factual claims and could have filed preliminary objections to that petition pursuant to 26 Pa.C.S. § 504(d). At that point, or upon the Szabos' filing of an answer to the preliminary objections, the dispute would have come to the fore and the Court of Common Pleas would have stepped in to resolve the issue, as anticipated in Chapter 5 of the Code.
While West Whiteland often is cited in tandem with Appeal of Bernstein , I do not believe that the latter case must suffer the same fate. While Appeal of Bernstein cited principles relied upon in West Whiteland , waiver was found for failure to file timely preliminary objections where condemnees sought to challenge the declared taking itself, rather than merely to secure greater compensation. See Appeal of Bernstein , 535 A.2d at 1212-13.
The fact remains that the Szabos seek not to adjudicate title or the validity of the taking, properly the province of Chapter 3 of the Code, but only to challenge the compensation for the property interests that PennDOT actually took, which is governed by Chapter 5. For that reason alone, I agree with the OAJC that the Szabos are entitled to a judicial determination by the Common Pleas Court concerning the nature and scope of PennDOT's taking. However, I disagree that our holding in that regard can be reconciled with West Whiteland .
Finally, while affirming the Commonwealth Court's decision in substantial part, the OAJC elaborates on, or perhaps departs from, the Commonwealth Court's proposed disposition. While the Commonwealth Court remanded with instructions to the trial court "for an evidentiary hearing consistent with this opinion," it left unclear whether it intended that the trial court thereafter assess compensation in the first instance or that the trial court, upon completion of the evidentiary hearing, relinquish the matter to the board of viewers for the determination of compensation in light of its findings. Szabo v. Commonwealth, Dep't of Transp. , 159 A.3d 604, 609 (Pa. Cmwlth. 2017). Clarifying that the Common Pleas Court, upon completion of the evidentiary hearing, should pass the case to the board of viewers to determine just compensation, the OAJC's mandate is most consistent with the Code's intended procedure. See OAJC at 64.
Case law provides scant guidance in this regard, but what there is, viewed in light of the Code's design, supports the OAJC's approach. In Millcreek Twp. v. N.E.A. Cross Co. , 152 Pa.Cmwlth. 576, 620 A.2d 558 (1993), the Commonwealth Court considered an alleged de facto taking. When such a claim is raised in a petition for the appointment of viewers and disputed by preliminary objections, a dispute concerning the fact and scope of the infringement arises, which by statute must be resolved by the Court of Common Pleas. 26 Pa.C.S. § 504(d)(5). The Millcreek court explained that, if the court determines that a de facto taking has occurred, "the case is then sent to a board of viewers to determine damages." Millcreek , 620 A.2d at 560 (citing In re Ramsey , 31 Pa.Cmwlth. 182, 375 A.2d 886 (1977) ).In this case, the parties dispute that the declaration and plan that PennDOT provided the Szabos contained any errors pertaining to ownership or the relevant scope of the project. These and any corollary questions concerning the precise contours of the property actually owned by the Szabos and the degree to which PennDOT imposed upon those interests must be resolved before the viewers can fulfill their function. The statutorily-designated body to resolve that fact-intensive question is the Court of Common Pleas, whose findings will provide the information necessary for the viewers to assess compensation in the first instance. For these reasons, I join the OAJC's disposition of the case and its mandate, notwithstanding my respectful disagreement with regard to aspects of its analysis.
While the concept of a de facto taking recurs frequently in the parties' arguments and the OAJC's account thereof, whether such occurred in this case lies outside the questions upon which we granted review. See Szabo v. Commonwealth, Dep't of Transp. , 643 Pa. 128, 172 A.3d 1109-10 (2017) (per curiam ); see OAJC at 58. If such a determination must be made, it is for the Common Pleas Court, on remand, as part of its fact-finding role in furtherance of the board of viewers' determination of just compensation.
Justice Todd joins the concurring opinion.
DISSENTING OPINION
JUSTICE DOUGHERTY, Dissenting
I respectfully dissent.
In property boundary disputes outside eminent domain and condemnation proceedings, this Court and others have long held owners of land are presumed to know what they own. See Fidelity-Philadelphia Trust Co. v. Lehigh Valley Coal Co. , 294 Pa. 47, 143 A. 474, 478 (1928) (owner is presumed to know boundaries of his own land); Piazzini v. Jessup , 153 Cal.App.2d 58, 314 P.2d 196, 198 (1957) ("the owner of land is presumed to know the area and boundaries of his own land") (citation omitted); Newfound Mgmt. Corp. v. Sewer , 885 F.Supp. 727, 756 (D.V.I. 1995) ("Owners of property presumptively know what they own and their lands' boundaries.") (citations omitted). In this matter, if appellees (Szabos) owned parcels 1 and 9 at any time, they apparently did not know it. Indeed, in order to consider excusing their failure to file preliminary objections to the declaration of taking, one must either presume their ignorance of ownership of parcels 1 and 9, or their ignorance of the boundaries of parcel 5, because the maps attached to the declaration of taking clearly set forth the boundaries of all three properties, identified Szabos as the owners of parcel 5 only, and identified other individuals and entities as the owners of parcels 1 and 9. Of course, given what the maps revealed, if one presumes Szabos knew what they owned and knew the boundaries of their land, which they now claim includes all of parcels 1, 5 and 9, then their failure to file preliminary objections to the alleged inaccuracies is easily seen as a failure on their part to inspect adequately the declaration of taking and its attachments.
From the record, including Szabos' submissions to the lower courts and this Court, it is impossible to tell whether Szabos knew what they owned when the declaration of taking was filed.1 It is my view, if Szabos knew what they owned, then the notice provided was clearly adequate to alert them to file preliminary objections and their subsequent attempt to challenge the extent and effect of the taking was properly deemed waived by the trial court. Moreover, if Szabos knew what they owned, the Commonwealth Court's determination Szabos received insufficient notice would be error, because the notice they received explicitly indicated they did not own parcels 1 and 9. Conversely, if Szabos did not know what they owned, when confronted with a declaration of taking, it was incumbent upon them to take immediate action to determine precisely what they owned in order to preserve their property interests.
Nevertheless, Justice Mundy, in the Opinion Announcing the Judgment of the Court (OAJC), determines notice to Szabos was deficient, given the fundamental protections of a person's property enumerated under our Constitution, and the fact the maps and declaration of taking did not state that parcels 1 and 9 were to be condemned . I am constrained to disagree, in part because I question whether appellant (PennDOT) was required to give Szabos notice of the condemnation of an adjacent property owner's parcel. Also, I believe the law recognizes the existence of potential prejudice to the Commonwealth and its taxpayers if any dispute as to the size of the property to be condemned is not raised by the condemnee at the time of the condemnation. Here, by the time Szabos made any objection, they had already accepted $ 587,000 estimated just compensation for parcel 5, PennDot had secured use of parcels 1 and 9 from the owners of record, and construction work had already begun. This is precisely the type of prejudice to the condemnor that can arise when the size of the property condemned is not challenged by the condemnee at the outset of proceedings. See 26 Pa.C.S. § 306(a) (preliminary objections filed within 30 days after being served with notice of condemnation shall be exclusive method of challenging the declaration); see also 26 Pa.C.S. § 307(c)(3) ("In no event shall the condemnee be compelled to pay back to the condemnor the [estimated just] compensation paid [to condemnee]..., even if the amount of just compensation as finally determined is less than the compensation paid."); West Whiteland Assocs. v. Dep't of Transp. , 690 A.2d 1266, 1269 (Pa. Cmwlth. 1997) (plot plans constitute "the heart of a declaration of taking" — size of property condemned presents basic issue which must be decided at earliest possible stage).
In that regard, I disagree with the OAJC's determination that reliance on West Whiteland is misplaced. In West Whiteland , PennDOT filed a declaration of taking in June 1989 that included a plot plan and property plat showing property consisting of 71.526 acres before condemnation and 23.866 acres after the taking. The condemnee did not file preliminary objections. Almost four years later, the condemnee petitioned for the appointment of a board of viewers, and requested additional compensation based on the allegation that his property before the taking actually consisted of 179 acres. PennDOT argued that because the condemnee failed to file preliminary objections pursuant to Section 406(a) of the former Code, 26 P.S. § 1-406 (repealed),2 condemnee had waived the right to raise this claim.
The Commonwealth Court agreed. It noted, "[p]reliminary objections under Section [306] of the Code are intended as a procedure to resolve expeditiously all legal and factual challenges to the declaration of taking before the parties move to the second distinct proceeding of qualifying damages." West Whiteland , 690 A.2d at 1268, citing North Penn Water Auth. v. A Certain Parcel of Land , 168 Pa.Cmwlth. 477, 650 A.2d 1197 (1994). "The plot plans and property plat filed with the declaration of taking and served upon a condemnee are part of and indeed, the heart of a declaration of taking. It is only by reference to such plans that one can determine what property is the subject of condemnation and, in the case of a partial taking, what part of a property has been taken." Id. at 1269, citing Milford Traumbauersville Area Sewer Auth. v. Approximately 0.753 Acres of Land , 25 Pa.Cmwlth. 13, 358 A.2d 450 (1976).
The West Whiteland panel additionally observed in accordance with the pertinent provisions of the Eminent Domain Code (Sections 402 and 405 of the former Code — now Sections 302 and 305, 26 Pa.C.S. §§ 302 and 305, respectively), PennDOT had included in the declaration of taking a description of the property condemned and a reference to the place where the plans showing the condemned property were recorded and could be inspected as well as sent the condemnee a plot plan showing his entire property and the area taken. The court concluded the issue condemnee sought to contest, i.e. , "the size of [c]ondemnee's entire property," related to "information that must be included in the declaration of taking and notice of condemnation," and was so basic to the case that it had to be decided at the earliest possible stage by the filing of preliminary objections. Id. at 1269.
In my view, West Whiteland is instructive for the present case and supports PennDOT's position. Here, Szabos did not file preliminary objections to the declaration of taking, but years later claimed they actually owned parcel 5 and parcels 1 and 9 despite the plot plans and maps attached to the declaration of taking clearly listing parcels 1 and 9 as being owned by other entities. As previously explained, plot plans are essentially the heart of a declaration of taking. Because the plot plans set forth the boundaries of parcels 1, 5 and 9, explained how the boundaries were drawn, and identified other parties as the owners of parcels 1 and 9, the trial court correctly determined Szabos were placed on notice of any alleged error long before amorphous circumstances prodded them to hire a surveyor and file their petition for evidentiary hearing in May 2015. See Tr. Ct. Op. at 4 ("Szabos knew precisely what property was being taken[.]").3 The disclosures in the plans, together with the notice accompanying PennDOT's declaration which advised Szabos of a thirty-day time frame within which to object, were sufficient to put Szabos on notice of what property was being taken and condemned, even if they actually did not know the extent and boundaries of their land. Szabos were clearly on notice further timely investigation would be required to support preliminary objections in the event they disagreed with PennDOT's information.4
I also question the OAJC's determination PennDOT did not adequately identify the extent or effect of the taking. Szabos have maintained throughout all phases of this litigation that they did not waive their challenge by failing to file preliminary objections. Szabos argue an exception to waiver exists where the declaration of taking fails to adequately establish the extent or effect of the taking such that the condemnation amounts to a de facto taking. Although the OAJC acknowledges this argument, and ultimately accepts Szabos' view the declaration failed to establish the extent or effect of the taking, the OAJC does not expressly conclude a de facto taking occurred here. I would squarely address the issue, and determine there was no de facto taking which would excuse the failure to file preliminary objections.
With respect to this issue, PennDOT asserts the declaration of taking in this case adequately established the extent and effect of the taking. It asserts a de facto taking — for purposes of excusing the requirement of preliminary objections — occurs only when a condemnee could not have known that ownership interests in additional property unidentified in the declaration will be negatively affected. PennDOT distinguishes this case from the facts presented in In re Commonwealth Dep't of Gen. Servs. , 714 A.2d 1159 (Pa. Cmwlth. 1998) (condemnee did not waive claim of de facto taking by failing to raise same in preliminary objections where declaration of taking did not adequately establish extent or effect of taking and subsequent petition alleged unforeseen lost access to timber and riparian rights), and Pennsylvania Dep't of Transp. v. Greenfield Twp. Prop. Owners , 135 Pa.Cmwlth. 113, 582 A.2d 41 (1990) (condemnees' failure to file preliminary objections to declaration of taking did not preclude later de facto taking allegation where condemnees unaware condemnation would leave property landlocked). PennDOT asserts both Greenfield Twp. and Dep't Gen. Servs. involved allegations of a taking "beyond what was stated in the declaration of taking's description of property condemned and associated plans." Appellant's Brief at 21. PennDOT claims "[h]ere, Szabos do not allege a taking beyond what was described in the declaration of taking[,]" but instead allege "simply that property condemned by PennDOT belonged to them and not the owner identified by PennDOT." Id. at 21-22. PennDOT accordingly asserts "the exceptions in these cases [ ( Greenfield Twp. and Dep't Gen. Servs. ) ] do not apply to this case, and therefore, do not excuse Szabos from filing preliminary objections to the declaration of taking pursuant to Section 306 of the Eminent Domain Code."Id. at 20.
I would first note, despite this Court's express inclusion of the citation to both cases in the second question upon which we granted review, Szabos do not cite to or discuss Dep't Gen. Servs. at all, and only briefly assert the holding in Greenfield Twp. "is on all fours" with the facts of the present case. Id. at 27. In short, Szabos' position is that because they did not know parcels 1 and 9 were to be condemned when the declaration of taking was filed on January 10, 2013, the PennDOT activity on parcels 1 and 9 in 2015 amounted to a de facto taking which excused their failure to file preliminary objections. I reiterate that the record makes clear Szabos had actual notice the declaration of taking listed other persons and entities as the record owners of parcels 1 and 9 triggering the requirement to file preliminary objections if they disagreed with the plans. See supra at 74–76. I would expressly analyze whether the actual taking of parcels 1 & 9 for the purposes of the highway widening and improvement project was a de facto taking of Szabos' property that could not have been foreseen, thus excusing their failure to file preliminary objections. I would conclude there was no de facto taking.5
"[A] de facto taking occurs when an entity clothed with the power of eminent domain substantially deprives an owner of the beneficial use and enjoyment of his property." In re De Facto Condemnation & Taking of Lands of WBF Assocs. , L.P. , 588 Pa. 242, 903 A.2d 1192, 1199 (2006). See also Appeal of D.R.E. Land Developing, Inc. , 149 Pa.Cmwlth. 290, 613 A.2d 96, 98 (1992) ("To find a de facto taking, there must be exceptional circumstances which have substantially deprived the property owner of the use and enjoyment of his or her property."). There is no bright-line criterion or exact test courts employ to determine whether a de facto taking has occurred, and each case must be examined on its own facts and circumstances. Gaughen v. Commonwealth, Dep't of Transp. , 123 Pa.Cmwlth. 550, 554 A.2d 1008, 1013 (1989) ; D.R.E. Land Developing , 613 A.2d at 98, citing McGaffic v. Redev. Auth. of City of New Castle , 120 Pa.Cmwlth. 199, 548 A.2d 653 (1988). "The property owner in a de facto taking, pursuant to the Eminent Domain Code, is under a heavy burden to establish that such a taking has occurred[.]" In re Property Situate Along Pine Rd. , 743 A.2d 990, 993 (Pa. Cmwlth. 1999). "Speculative and conjectural harms are insufficient to show the substantial deprivation of use and enjoyment necessary to a de facto taking claim." McMaster v. Twp. of Bensalem , 161 A.3d 1031, 1037 (Pa. Cmwlth. 2017).
In Greenfield Twp. , the condemnees ("DeMarcos") were owners of approximately 100 acres in Greenfield Township, Erie County. PennDOT filed a declaration of taking which condemned 15.08 acres of DeMarcos' land for the construction of an expressway. DeMarcos did not file preliminary objections to the declaration of taking, and PennDOT paid them $ 16,300 just compensation. The condemnation bisected the remaining portions of DeMarcos' property into two parcels, one containing 16.86 acres north of the expressway, and another containing 68.77 acres south of the expressway. As a result of the condemnation, DeMarcos had no access to the now landlocked southern portion of their property. Greenfield Twp. , 582 A.2d at 43.
PennDOT attempted to cure the problem by condemning a portion of an adjacent landowner's property for the purpose of providing the DeMarcos with a right-of-way to reach the southern portion of their property. DeMarcos found the right-of-way unusable because it consisted of a gully and a ravine which were inaccessible and could not be traversed by automobile or farm vehicle. They petitioned for the appointment of viewers alleging a de facto taking of the southern portion of their property; the viewers determined the right-of-way was sufficient to provide access to the southern portion, the southern portion was not landlocked and a de facto taking had not occurred. Id. DeMarcos appealed to the Erie County Court of Common Pleas, which reversed, concluding the right-of-way was unusable and a de facto taking of the southern portion of DeMarcos' property had occurred. Id. PennDOT appealed, claiming DeMarcos were precluded from alleging a de facto taking because they had not filed preliminary objections to the declaration of taking. Id.
The Commonwealth Court analogized the circumstances to City of Pittsburgh v. Gold , 37 Pa.Cmwlth. 438, 390 A.2d 1373 (1978), which held a condemnee who had not filed preliminary objections in a condemnation proceeding was not precluded from later alleging a de facto taking, because the damage to his property did not become evident until two years after the declaration of taking had been filed. The Greenfield Twp. court reasoned DeMarcos were similarly excused from filing preliminary objections because they were unaware at the time of the filing of the declaration of taking that the southern portion of their property would be landlocked, relying on PennDOT's assurances that it would provide a usable right-of-way. Greenfield Twp. , 582 A.2d at 44. The court held "when an entity clothed with the power of eminent domain has, by even a non-appropriative act, substantially deprived an owner of the beneficial use and enjoyment of his property, a de facto taking will be deemed to have occurred." Id.
In Dep't Gen. Servs. , the condemnor, the Department of General Services ("DGS"), was authorized to acquire several miles of abandoned railroad bed along the Youghiogheny River for the construction of a hike/bike trail to be controlled and administered by the Department of Natural Resources as an extension of Ohiopyle State Park. Dep't Gen. Servs. , 714 A.2d at 1160-61. The abandoned railroad bed ran along the eastern portion of an 1124 acre tract owned by the condemnee, Curry Lumber Company ("Curry"). DGS filed a declaration of taking, to which Curry filed preliminary objections claiming the declaration failed to depict the extent of the land being condemned. Id. at 1161. DGS filed an amended declaration and Curry again filed preliminary objections claiming an inadequate description of the property. DGS filed a second amended declaration of taking "which was followed by various motions, answers, and orders regarding the need for a current site survey." Id. The court subsequently approved a stipulation between the parties that DGS would perform a site survey at a future date preceding construction of the bike/hike trail and Curry would withdraw all preliminary objections, entitling DGS to immediate possession of the condemned property. Id.
Curry filed a petition for payment of estimated just compensation and in May 1993, Curry received $ 30,000. Construction of the bike/hike trail began. In July 1996, Curry filed a petition for the appointment of viewers alleging the site survey was not performed as ordered, and that a de facto taking had occurred because Curry lost access to the remaining property as well as timber and riparian rights. DGS filed preliminary objections to the petition for the appointment of viewers seeking an evidentiary hearing. The trial court denied DGS's preliminary objections following submission of briefs and oral argument. Id.
On appeal, DGS argued, inter alia , that Curry waived the issue of a de facto taking by failing to raise the issue in preliminary objections to the declaration of taking. The panel relied on Greenfield Twp. to reject that argument by DGS, and determined "[t]he record here supports the conclusion that the [d]eclaration of [t]aking did not adequately establish the extent or effect of the taking. Therefore, this issue is not waived." Id. at 1162.
As Greenfield Twp. and Dep't Gen. Servs. demonstrate, Pennsylvania jurisprudence recognizes a de facto taking occurs when there has been a substantial deprivation of a party's use of his or her land even though there has been no physical intrusion upon it. The Commonwealth Court has confirmed, "[t]he theory of de facto taking has been developed in response to" circumstances in which a government improvement project may "so substantially interfere with one's use and enjoyment of his property as to inflict a compensable injury ... even though the power of eminent domain has not been formally exercised against the property in question and there has been no physical intrusion of it." Filbert Ltd. Partnership Appeal , 64 Pa.Cmwlth. 605, 441 A.2d 1345, 1352 (1982). This principle is illustrated in Greenfield Twp. , where there had been no physical intrusion upon the southern portion of DeMarcos' property. Instead, that portion had become landlocked, and thus unusable, due to the roadway construction project that took place on the condemned portion of DeMarcos' property, resulting in a de facto taking. Greenfield Twp. , 582 A.2d at 44. Similarly, in Dep't Gen. Servs. , even though there had been no physical intrusion, Curry lost access to timber and riparian rights on its property adjacent to the condemned property upon which the hike/bike trail had been constructed, and thus, the court determined there were sufficient facts of a de facto taking of the adjacent property to warrant an evidentiary hearing on the matter, despite the failure to file preliminary objections. Dep't Gen. Servs. , 714 A.2d at 1162. Importantly, in both cases, the extent and effect of the taking were not known, in part, because condemnees were unaware at the time their property was condemned that unintended consequences affecting their rights would follow. Id. ,discussing generally Greenfield Twp. , 582 A.2d 41.
With these principles in mind, I observe there was an actual intrusion upon parcels 1 and 9 by the condemnor here: PennDOT took direct, observable occupation of the land via physical construction and widening of the roadway as part of its condemnation and de jure taking of those parcels from persons and entities other than Szabos. Szabos seek to convert PennDOT's plainly de jure taking of parcels 1 & 9 (from the owners of record as set forth on the plans contained in the declaration of taking for parcel 5) into a de facto taking of parcels 1 & 9 from themselves, in order to excuse their failure to file preliminary objections to the declaration of taking. Szabos ask us to conclude the taking was de facto with respect to them in part because they allegedly did not know in January 2013 that parcels 1 & 9 had been condemned, and because they did not know at that time the roadway construction would even impact parcels 1 & 9.
I would conclude Szabos' arguments in this regard are unavailing. Indeed, Szabos' assertion the plans attached to PennDOT's declaration of taking did not indicate parcels 1 and 9 were related to or a part of the de jure condemnation of parcel 5 is misleading. First, my review of the plans attached to the declaration show parcels 1 and 9 are in closest proximity to the site of the planned construction. Any careful review of the plans would lead a reasonable person to conclude, particularly one in purported possession of the land, the greatest effect of the proposed construction would occur on parcels 1 and 9. Second, despite their arguments to the contrary, Szabos appear to acknowledge they understood parcels 1 and 9 would be condemned in addition to parcel 5. Tellingly, their brief states, "A party is not required to assert ownership to condemned property by filing preliminary objections when the declaration of taking says the property condemned is owned by another." Id. at 11. Under the facts of this case, I would conclude there was no de facto taking as the plans and attachments adequately revealed the effect and extent of the taking such that there were no unanticipated consequences of PennDOT's proposed condemnation. I would decline to expand the range of circumstances establishing a de facto taking to include unsubstantiated averments of mistake on the face of plans attached to a declaration of taking which clearly set forth the parcels, their owners, their boundaries, and explained underlying distance errors and anomalies in the chain of title upon which the plans are drawn.6
Moreover, it is clear the size of the condemned property is a basic and fundamental aspect of a taking that must be finally determined at the earliest opportunity. Thus, in my view, it is incumbent upon the condemnee to investigate further and, if in disagreement with the plans attached to the declaration of taking, to file timely preliminary objections. 26 Pa.C.S. § 306(a).
Accordingly, I respectfully dissent.
Justice Donohue joins this dissenting opinion.