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Szabo v. Commonwealth, Department of Transportation

Commonwealth Court of Pennsylvania

April 12, 2017

Stephen J. Szabo and Mary B. Szabo, Appellants
v.
Commonwealth of Pennsylvania, Department of Transportation

          Argued: November 14, 2016

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE JOSEPH M. COSGROVE, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

          OPINION

          JOSEPH M. COSGROVE, Judge

         This matter is before us on appeal from the decision of the Court of Common Pleas of Washington County (trial court) which denied the Petition of Stephen J. Szabo and Mary B. Szabo, husband and wife (Szabos), seeking an evidentiary hearing on the extent and nature of property interests condemned in an eminent domain matter. For the reasons set forth below, we reverse and remand.

         The Szabos are the owners of real property in McMurray, Pennsylvania that is improved with a commercial retail business. On January 10, 2013, the Department of Transportation (Department) filed a Declaration of Taking (Declaration) with the trial court to acquire property for the expansion of State Route 19 under the Eminent Domain Code (Code).[1] Pursuant to the Declaration, the Department acquired a portion of the property owned by the Szabos. Plans illustrating the proposed condemnation, the property lines and ownership interests of the affected properties, accompanied the Declaration. Some property lines were labeled as "probable [sic] correct." (Reproduced Record (R.R.) at 11a.) As a part of the project, the Department agreed to construct a rear parking lot at either a flat or safe and acceptable grade on the Szabos' property.

         On December 12, 2013, pursuant to Section 502 of the Code, [2] the Szabos filed a Petition for Appointment of Viewers to determine the amount of just compensation as a result of the condemnation. The Board of View scheduled a hearing for June 18, 2014.

         In preparation for the hearing, the Szabos engaged a professional registered surveyor to complete a survey of their property. The surveyor discovered that the plans attached to the Declaration misidentified property owned by the Szabos as owned by other entities. As a result of the inaccuracies, the plans understated the amount of property owned by the Szabos taken as part of the condemnation. Therefore, the Department condemned more of the Szabos' property than the Declaration indicated.

         The Szabos immediately brought these concerns to the attention of the Department, but the parties were not able to reach an agreement on the matter. The Szabos filed a Petition for Evidentiary Hearing on May 13, 2015, requesting that the trial court conduct an evidentiary hearing to determine the nature and extent of the property interests condemned and identify the owners thereof. On August 17, 2015, the trial court entered an order denying the Petition for Evidentiary Hearing. On September 4, 2015, the Szabos filed a Motion for Reconsideration and In the Alternative for Certification of Permission to Appeal. This Court granted Appellants' petition for permission to appeal[3] on February 16, 2016.

         Based on the trial court's opinion, issued coextensive with the August 17, 2015 order, the Szabos raise two issues on appeal: 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 a waiver of their right to raise the inadequacy of the plan attached to the declaration of taking. The Szabos argue the Declaration did not adequately describe the extent or effect of the taking of their property and therefore an exception to the rule requiring the filing of preliminary objections within 30 days would apply and the trial court should have conducted an evidentiary hearing. The Declaration filed with the trial court understated the Szabos' property interests and the Department affected a taking of more of the Szabos' land than indicated in the Declaration.

         The Department argues that the Declaration contained plans depicting the areas to be condemned and, therefore, Szabos had notice of the parcels being condemned. The Department acknowledges that the revised plans for the taking included the disputed parcels and those parcels are owned by other parties. (R.R. at 11a-12a.) However, the Department argues that the Szabos received the Notice of Taking and had two meetings with the Department, which more than satisfied the statutory requirements of Section 305 of the Code.

         Section 305 of the Code requires the condemnor to give written notice to the condemnee of the filing of the declaration of taking within 30 days after filing. The written notice must contain, among other items, a reasonable identification of the property. 26 Pa.C.S. § 305(c)(8). The Department filed the Declaration on January 10, 2013, and filed with it plans that illustrated the proposed taking and ownership of the affected property. These plans incorrectly identified property owned by the Szabos as owned by other parties. (Supplemental R.R. 31b-53b.)

         In West Whiteland Associates v. Commonwealth, Department of Transportation, 690 A.2d 1266 (Pa. Cmwlth. 1997), this Court noted that the plot plans and property plat filed with the declaration of taking and served upon the condemnee are part of, and indeed, the heart of the declaration of taking. Id. at 1269. It is only by reference to such plans that one can determine what property is the subject of the condemnation. Id.

         This Court has held on several occasions how crucial it is that plans attached to the declaration of taking be specific in describing property that is condemned and how important it is to properly identify that property at the earliest stages of the taking. In re Commonwealth, Department of General Services, 714 A.2d 1159 (Pa. Cmwlth. 1998) (landowner did not waive 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); Commonwealth, Department of Transportation v. Greenfield Township-Property Owners, 582 A.2d 41 (Pa. Cmwlth. 1990) (landowners' failure to file preliminary objections to the declaration of taking did not preclude them from alleging a de facto taking where landowners were unaware that the condemnation would leave property landlocked).

         Instantly, the parcels in question in this condemnation were marked on the plans filed with the Declaration as belonging to other parties. (R.R. 7a-12a.) Not until a surveyor was engaged was it discovered these parcels were owned by the Szabos and the Szabos were not compensated for the taking of that property. In the Declaration, the Department failed to accurately identify that property which was part of the taking. This failure resulted in a taking of more of the Szabos' ...


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