            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mark A. Kriner and                                :
Amy J. Kriner                                     : No. 1772 C.D. 2015
                                                  : Argued: June 6, 2016
                       v.                         :
                                                  :
Commonwealth of Pennsylvania,                     :
Department of Transportation,                     :
                                                  :
                               Appellant          :


BEFORE:         HONORABLE RENÉE COHN JUBELIRER, Judge
                HONORABLE MICHAEL H. WOJCIK, Judge
                HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                                 FILED: September 26, 2016


                The Department of Transportation (Department) appeals the order of
the York County Court of Common Pleas (trial court) overruling its preliminary
objections to the Petition for Appointment of Viewers (Petition) filed by Mark A.
Kriner and Amy J. Kriner (Condemnees) and denying its motion for an evidentiary
hearing. We vacate and remand.
                Condemnees own property at 600 Pleasant Grove Road, Red Lion,
York County, which includes a barn that abuts the road. The Department began
conducting paving work on the road in 2009 that included resurfacing the road. In
April 2015, Condemnees filed the Petition alleging both a de facto taking under
Section 502(c) of the Eminent Domain Code1 and an action for consequential

      1
          26 Pa. C.S. §502(c). Section 502(c) states, in relevant part:
(Footnote continued on next page…)
damages under Section 714 of the Eminent Domain Code (Code).2 Count I alleged
a de facto taking based on a change of grade of the road that exacerbated water
flow against the barn’s foundation resulting in the removal and interruption of
surface support causing fracturing and bowing of the barn’s foundation wall. The
Petition also alleged that the road work otherwise injured the property and the barn
depriving Condemnees of the beneficial use and enjoyment of their property
requiring demolition and reconstruction of the barn. Reproduced Record (R.R.) at
3a-4a.       Count II of the Petition alleged that Condemnees also suffered
consequential damages resulting from the change of grade of the road and/or injury



(continued…)

               (c) Condemnation where no declaration of taking has been
               filed.—

               (1) An owner of a property interest who asserts that the owner’s
               property interest has been condemned without the filing of a
               declaration of taking may file a petition for the appointment of
               viewers . . . setting forth the factual basis of the petition.

               (2) The court shall determine whether a condemnation has
               occurred, and, if the court determines that a condemnation has
               occurred, the court shall determine the condemnation date and the
               extent and nature of any property interest condemned.

               (3) The court shall enter an order specifying any property interest
               which has been condemned and the date of the condemnation.

         2
           26 Pa. C.S. §714. Section 714 states that “[a]ll condemnors, including the
Commonwealth, shall be liable for damages to property abutting the area of an improvement
resulting from change of grade of a road or highway, permanent interference with access or
injury to surface support, whether or not any property is taken.” A claim for just compensation
due to a de facto taking is separate and distinct from a claim for consequential damages under the
Code. Capece v. City of Philadelphia, 552 A.2d 1147, 1149 (Pa. Cmwlth. 1989).


                                                2
to surface support. Id. at 5a. Pursuant to Section 504(a)(1) of the Code,3 the trial
court appointed a board of viewers (Board).
                 In May 2015, the Department filed timely preliminary objections to
the Petition.4 The Department contested that the Petition set forth a valid de facto
condemnation under Section 502(c), alleging that Condemnees had failed to
specify what Department actions caused a de facto taking; whether it was a partial

       3
           Section 504(a)(1) of the Eminent Domain Code states:

                 (a) Court to appoint.—

                 (1) Upon the filing of a petition for the appointment of viewers,
                 the court, unless preliminary objections to the validity of the
                 condemnation . . . are pending, shall promptly appoint three
                 viewers who shall view the premises, hold hearings and file a
                 report.

26 Pa. C.S. §504(a)(1).

       4
           Section 504(d) states, in relevant part:

                 (d) Preliminary objections.—

                 (1) Any objection to the appointment of viewers may be raised by
                 preliminary objections filed within 30 days after receipt of notice
                 of the appointment of viewers.

                                                  ***

                 (4) The court shall determine promptly all preliminary objections
                 and make any orders and decrees as justice requires.

                 (5) If 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.

26 Pa. C.S. §504(d)(1), (4), (5).


                                                      3
or a total taking; the nature of the title taken; and a description of the property
taken. R.R. at 21a. The Department also asserted that it had only performed
routine maintenance of the road within its right-of-way without any change to its
storm water rights at that location; Condemnees were not deprived of the beneficial
use and enjoyment of their property; and Condemnees cannot produce competent
evidence of any impact to their property by its activities. Id. at 21a-22a. The
Department also averred that any remedy for any purported damage to
Condemnees’ property sounds in negligence and not a taking under the Eminent
Domain Code.         Id. at 22a.     Finally, the Department asked the trial court to
“schedule a hearing regarding the [Petition] filed by [Condemnees] and [the]
preliminary objections thereto,” citing Section 502(c)(2) and (3) and Millcreek
Township v. N.E.A. Cross Co., 620 A.2d 558 (Pa. Cmwlth. 1993), appeal denied,
644 A.2d 739 (Pa. 1994).5 Id. at 27a.
               In the order overruling the Department’s preliminary objections and
denying its motion for an evidentiary hearing, the trial court stated that the
Department did not file a motion for reconsideration of its prior order appointing
the Board and that the preliminary objections and motion for an evidentiary
hearing were “not appropriate at this point.” R.R. at 57a. The court explained that
“it appears that the Department intends [to] argue its case preliminarily to the
Court instead of properly raising its position before the [Board]. The Court sees no
basis for or merit in the relief requested by the Department.” Id. at 57a-58a.



       5
          In Millcreek Township, we explained that “[b]y the plain language of [the former]
section 504, a trial court needs to take evidence only if one or more issues of fact are raised the
resolution of which are necessary to ruling on the threshold question of whether a de facto taking
has occurred.” 620 A.2d at 560.


                                                4
                In the Pa. R.A.P. 1925(a) opinion filed in support of its order, the trial
court explained:

                       The Department also raises, for the first time, an
                argument that it is entitled to an evidentiary hearing.
                This argument was not made in the Preliminary
                Objections and only a “respectful request, for an
                evidentiary hearing was made.” While reference to 26
                Pa. C.S. §502(c)(2) & (3) was made in the POs, nothing
                in that statute states that the Court must make the
                determination of condemnation at a specific time. In
                fact, 26 Pa. C.S. §[502](c)(1) states that the condemnee
                in an inverse taking may file a petition for appointment
                of [a] board of viewers. The Board only determines just
                compensation. It is not error for the Court to wait until
                the conclusion of the Board’s hearing to see if the
                Department will object or appeal the decision before
                undertaking the lengthy process of an evidentiary
                hearing.
R.R. at 97a-98a.
                On appeal, 6 the Department argues that the trial court erred in failing
to dismiss the Petition because it does not adequately allege a compensable de
facto taking,7 and in failing to conduct a hearing on disputed issues of fact.

       6
         Our review of a trial court order overruling preliminary objections to a petition for the
appointment of a board of viewers is limited to determining whether the trial court abused its
discretion or committed an error of law. Snap-Tite, Inc. v. Millcreek Township, 811 A.2d 1101,
1105 (Pa. Cmwlth. 2002).

       7
           This Court has explained:

                In order to prove a de facto taking, the property owner must
                establish exceptional circumstances that substantially deprived him
                of the beneficial use and enjoyment of his property. This
                deprivation must be caused by the actions of an entity with
                eminent domain powers. Also, the damages sustained must be
                an immediate, necessary and unavoidable consequence of the
                exercise on the entity’s eminent domain powers. A de facto
(Footnote continued on next page…)
                                                5
Because the trial court was required to make an initial determination of whether the
Petition alleged a compensable de facto taking or a valid claim for consequential
damages under the Code, and to receive evidence on the disputed issues of fact, we
are compelled to vacate and remand.


(continued…)

               taking is not a physical seizure of property; rather, it is an
               interference with one of the rights of ownership that
               substantially deprives the owner of the beneficial use of his
               property. The beneficial use of the property includes not only its
               present use, but all potential uses, including its highest and best
               use.

York Road Realty Co. v. Cheltenham Township, 136 A.3d 1047, 1050-51 (Pa. Cmwlth. 2016)
(citation and footnote omitted and emphasis in original).

        Moreover, the property owner must establish that the de facto taking was pursuant to the
entity’s eminent domain powers:

               The decision of whether a compensable taking has occurred
               requires an initial determination that the act complained of
               was, in fact, an exercise of eminent domain power. Acts not
               done in the exercise of the right of eminent domain and not the
               immediate, necessary or unavoidable consequences of such
               exercise cannot be the basis of a proceeding in eminent domain.

               Eminent domain is the power to take property for public use and
               compensation must be paid for property that is taken, injured or
               destroyed. Police power, on the other hand, is the inherent power
               of the government to enact and enforce laws for the promotion of
               health, safety, and general welfare. The difference lies in the
               nature of the action at issue. Did the government enact or enforce
               a law or rule, or otherwise “control” the use of property for the
               health, safety or welfare of the public? Or did it take property for
               the public’s benefit?

Id. at 1050 n.3 (citations omitted and emphasis in original).


                                                 6
             Preliminary objections filed pursuant to Section 504(d) of the Code
serve a different purpose than preliminary objections filed in other civil actions. In
eminent domain cases, preliminary objections are intended as a procedure to
expeditiously resolve the factual and legal challenges to a declaration of taking or a
petition for the appointment of viewers. As this Court has explained:

             [W]hen reviewing preliminary objections to a petition for
             the appointment of viewers,

                   [t]he trial court must determine whether, as a
                   matter of law, the averments of the petition for the
                   appointment of viewers, taken as true, in
                   addition to any stipulated facts, are sufficient to
                   state a cause of action for a de facto taking. If
                   not, the preliminary objections must be sustained
                   and the petition dismissed or allowed to be
                   amended. If the averments, taken as true, might
                   establish a de facto taking, the trial court must
                   take evidence by depositions, or otherwise, so
                   that a judicial determination might be made.
York Road Realty Co. v. Cheltenham Township, 136 A.3d 1047, 1052 (Pa. Cmwlth.
2016) (citations omitted and emphasis in original). Moreover, as stated above,
Section 504(d)(5) of the Code specifically provides that “[i]f 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.” 26 Pa. C.S. §504(d)(5).
             In the instant Petition, Condemnees alleged that: the Department has
condemnation power, R.R. at 4a, ¶12; “exceptional circumstances” have
“substantially deprived them of the use and enjoyment of their property,” id. at 3a,
¶12; the Department performed roadwork abutting their property near their barn,
id. at 3a, ¶¶5, 8; the work included “changing the grade of the road thereby causing


                                          7
or exacerbating the flow of water onto [their] property” and the Department
“perform[ed] the road work in a manner that has resulted in injury to the Property,”
id. at 3a-4a, ¶10(a)-(c); the complained-of actions compromised the barn’s
structural integrity requiring its demolition, id. at 3a, ¶6, 4a, ¶12; and the foregoing
is the immediate, necessary, and unavoidable consequence of the Department’s
actions. Id. at 4a, ¶13.
             These averments, taken as true, might establish a de facto taking of
Condemnees’ property. See, e.g., Ostoich v. Wilson, 406 A.2d 1200, 1201 (Pa.
Cmwlth. 1979) (holding that the Department’s highway improvements over a four-
year period that caused periodic flooding and damage to portions of adjacent
property constituted a de facto taking); Gerner v. Borough of Bruin, 390 A.2d 319,
320 (Pa. Cmwlth. 1978) (holding that a borough’s grading and paving of an alley
that caused surface water to flow onto adjacent property and damage pine trees
constituted a de facto taking); Lerro v. Department of Transportation, 379 A.2d
652, 653 (Pa. Cmwlth. 1977) (holding that highway improvements, grading and
contouring done by the Department, a township, and a borough that resulted in the
flooding of and damage to portions of adjacent property constituted a de facto
taking).
             In its preliminary objections, the Department objected in the nature of
a demurrer challenging the Petition’s validity on its face. In the alternative, the
Department provided a verified answer to the Petition’s allegations regarding its
roadwork. The Department raised disputed issues of fact regarding whether its
road maintenance and paving within its legal right of way did not impact
Condemnees’ property or the barn or any other structures on the property, and
alleged that the routine maintenance and paving did not result in a change in


                                           8
grade,8 did not divert the natural flow of water onto Condemnees’ property, and did
not cause damage or affect surface support. R.R. at 24a-26a. The Department also
specifically requested an evidentiary hearing on the Petition. Id. at 27a.
               Based on the foregoing, the trial court erred in refusing to hold an
evidentiary hearing or receive evidence by deposition or otherwise, and referring
the matter to the Board, thereby improperly delegating its duty to make the initial
determination of whether a de facto taking occurred and to what extent, and
whether Condemnees are entitled to consequential damages under the Code. 26
Pa. C.S. §504(d)(5). As a result, the matter will be remanded to the trial court.
See, e.g., Campbell v. Lower Providence Township, 705 A.2d 478, 482 (Pa.
Cmwlth. 1997) (“This Court has held repeatedly that the [trial court] must resolve
factual questions raised by an objection and decide the threshold legal issue of
whether there has been a de facto taking or compensable injury.                      [Millcreek
Township].       This case must be returned to the trial court for such a
determination.”).
               Accordingly, the trial court’s order is vacated and the case is
remanded for proceedings consistent with the foregoing opinion.




                                             MICHAEL H. WOJCIK, Judge

       8
          See, e.g., Daw v. Department of Transportation, 768 A.2d 1207, 1210-11 (Pa. Cmwlth.
2001), appeal dismissed, 832 A.2d 1064 (Pa. 2003) (“[W]hen a change in grade of the abutting
street causes water run-off to damage property, a landowner is not limited to a trespass action to
recover for damage to his or her property, but can also bring an action under [the predecessor to
Section 714] for a de facto taking. However, unlike a trespass action, to make out a claim for
consequential damages, the landowner must establish both that there was a change of grade and
that change caused the damages to landowner’s property.”) (citation omitted).


                                                9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mark A. Kriner and                         :
Amy J. Kriner                              : No. 1772 C.D. 2015
                                           :
                   v.                      :
                                           :
Commonwealth of Pennsylvania,              :
Department of Transportation,              :
                                           :
                         Appellant         :

                                     ORDER


            AND NOW, this 26th day of September, 2016, the order of the York
County Court of Common Pleas dated August 21, 2015, at No. 2015-SU-001321-
64 is VACATED and the matter is REMANDED to that court for proceedings
consistent with the foregoing opinion.
            Jurisdiction is RELINQUISHED.




                                         __________________________________
                                         MICHAEL H. WOJCIK, Judge
