                            [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,




                           [J-27-2018] [OAJC: Mundy, J.] - 12
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




                            [J-27-2018] [OAJC: Mundy, J.] - 13
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.


                            [J-27-2018] [OAJC: Mundy, J.] - 14
       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




                            [J-27-2018] [OAJC: Mundy, J.] - 15
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.


                             [J-27-2018] [OAJC: Mundy, J.] - 16
