Stephen J. Szabo and Mary B. Szabo, Appellants
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
M. COSGROVE, Judge
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.
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). 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'
December 12, 2013, pursuant to Section 502 of the Code,
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
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.
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 on February 16, 2016.
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
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.
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.)
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.
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
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'