Szabo, S. v. PennDOT, Aplt.

[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 :

DISSENTING OPINION

JUSTICE DOUGHERTY DECIDED: FEBRUARY 20, 2019

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., 143 A.

474, 478 (Pa. 1928) (owner is presumed to know boundaries of his own land); Piazzini v.

Jessup, 314 P.2d 196, 198 (Cal. Ct. App. 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

1 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.

[J-27-2018] [OAJC: Mundy, J.] - 2

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).

[J-27-2018] [OAJC: Mundy, J.] - 3

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, 650 A.2d 1197 (Pa. Cmwlth. 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, 358 A.2d 450 (Pa. Cmwlth. 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 —

2Repealed by Section 5 of the Act of May 4, 2006, P.L. 112 and replaced by 26 Pa.C.S.

§306(a).

[J-27-2018] [OAJC: Mundy, J.] - 4

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

3 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, 798 A.2d 725, 730 n.4 (Pa. 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).

[J-27-2018] [OAJC: Mundy, J.] - 5

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.

4 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 12), 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 6.

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 3, 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.

[J-27-2018] [OAJC: Mundy, J.] - 6

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, 582 A.2d 41 (Pa. Cmwlth. 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

[J-27-2018] [OAJC: Mundy, J.] - 7

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

4-6. 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 WFB Assocs., L.P., 903

A.2d 1192, 1199 (Pa. 2006). See also Appeal of D.R.E. Land Developing, Inc., 613 A.2d

96, 98 (Pa. Cmwlth. 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., 554 A.2d 1008, 1013 (Pa. Cmwlth. 1989); D.R.E. Land Developing, 613 A.2d at

98, citing McGaffic v. Redev. Auth. of City of New Castle, 548 A.2d 653 (Pa. Cmwlth.

5 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 16, n.8. Both Greenfield Twp. and Dep’t Gen Servs.

involved de facto takings.

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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’

[J-27-2018] [OAJC: Mundy, J.] - 9

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, 390 A.2d 1373 (Pa. Cmwlth. 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

[J-27-2018] [OAJC: Mundy, J.] - 10

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

[J-27-2018] [OAJC: Mundy, J.] - 11

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, 441 A.2d 1345, 1352 (Pa. Cmwlth. 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

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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

6 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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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.

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