Szabo, S. v. PennDOT, Aplt. ( 2019 )

[J-27-2018] [OAJC: Mundy, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
STEPHEN J. SZABO AND MARY B. : No. 46 WAP 2017
SZABO, :
: Appeal from the Order of the
Appellees : Commonwealth Court entered April
: 12, 2017 at No. 2039 CD 2015,
: reversing the Order of the Court of
v. : Common Pleas of Washington County
: entered October 6, 2015 at No. 2013-
: 7608 and remanding.
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF TRANSPORTATION, : ARGUED: April 11, 2018
:
Appellant :
CONCURRING OPINION
JUSTICE WECHT DECIDED: FEBRUARY 20, 2019
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.1
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
1 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.”).
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.2
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 2-3 (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 3.
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 10-11. Given its
acknowledged uncertainty regarding the property boundaries, PennDOT should have
conducted a more penetrating investigation before filing the declaration. At a minimum,
2 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.
[J-27-2018] [OAJC: Mundy, J.] - 2
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.3
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 Szabo’s 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, 535 A.2d 1210, 1214 (Pa. Cmwlth. 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
3 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, 116 A.2d 294, 295 (Pa. Super. 1955) (“Statutes concerning eminent
domain are to be strictly construed.”).
[J-27-2018] [OAJC: Mundy, J.] - 3
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
[J-27-2018] [OAJC: Mundy, J.] - 4
the security required under section 303(a).”4 Id. § 302(a)(1). The declaration of taking
must include, inter alia:
(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.
4 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)
[J-27-2018] [OAJC: Mundy, J.] - 5
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, 582 A.2d 41
(Pa. Cmwlth. 1990); City of Pittsburgh v. Gold, 390 A.2d 1373 (Pa. Cmwlth. 1978).5
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
5 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 9 & 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 these 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.
[J-27-2018] [OAJC: Mundy, J.] - 6
of the total amount of damages and the distribution between or among the several
claimants.” Id. § 512.
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,
[J-27-2018] [OAJC: Mundy, J.] - 7
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
[J-27-2018] [OAJC: Mundy, J.] - 8
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).6 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.
6 The unity of purpose doctrine now is found in 26 Pa.C.S. § 705.
[J-27-2018] [OAJC: Mundy, J.] - 9
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, 798 A.2d 725 (Pa. 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
[J-27-2018] [OAJC: Mundy, J.] - 10
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
[J-27-2018] [OAJC: Mundy, J.] - 11
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 20. 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,
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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
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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.7
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.
7 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.
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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 21.
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., 620 A.2d 558 (Pa. Cmwlth. 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
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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, 375 A.2d 886
(Pa. Cmwlth. 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.8 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.
Justice Todd joins the concurring opinion.
8 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., 172 A.3d 1109-10 (Pa. 2017) (per curiam); see OAJC at 10. 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.
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