              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Stephen J. Szabo and Mary B. Szabo,           :
                  Appellants                  :
                                              :
              v.                              : No. 1380 C.D. 2018
                                              : Argued: May 6, 2019
Commonwealth of Pennsylvania,                 :
Department of Transportation                  :


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION
BY PRESIDENT JUDGE LEAVITT                                           FILED: June 19, 2019

              Stephen J. and Mary B. Szabo (Szabos) appeal an order of the Court of
Common Pleas of Washington County (trial court) sustaining the preliminary
objections of the Pennsylvania Department of Transportation (PennDOT) to their
petition for the appointment of a board of viewers to compensate them for
PennDOT’s de facto taking of their property in a road project.1 On appeal, the
Szabos contend that the trial court erred in dismissing their petition without holding
an evidentiary hearing. In addition, PennDOT has filed a motion to dismiss the
Szabos’ appeal as moot. It contends that the Szabos’ claims have been raised in
prior litigation and will be decided in the remand evidentiary hearing ordered by the
Pennsylvania Supreme Court in Szabo v. Department of Transportation, 202 A.3d
52 (Pa. 2019) (Szabo II). For the reasons to follow, we grant PennDOT’s motion to
dismiss the Szabos’ appeal as moot.


1
  Section 502(c) of the Eminent Domain Code permits an owner of a property interest, whose
interest has been condemned without the filing of a declaration of taking, to petition for the
appointment of a board of viewers to determine the just compensation. 26 Pa. C.S. §502(c).
                                          Background

               The Szabos own real property located at 3101 Washington Road in
Peters Township, Washington County, adjacent to State Route 19, which PennDOT
is expanding. On April 19, 2018, the Szabos filed a petition for appointment of a
board of viewers docketed at Civil Division No. 2018-1911 (De Facto Petition),
which alleged that PennDOT’s project effected a de facto taking of a portion of their
real property. This was the Szabos’ second petition for appointment of a board of
viewers relating to PennDOT’s State Route 19 project. We begin, accordingly, with
a review of the litigation that preceded the filing of the De Facto Petition.2
               On January 10, 2013, PennDOT filed a declaration of taking
(Declaration) to condemn a portion of property owned by the Szabos for the
expansion of State Route 19. PennDOT’s Declaration included a plan that identified
part of Parcel No. 5, which the Szabos owned, as subject to the condemnation. The
Szabos did not file preliminary objections to PennDOT’s Declaration because they
did not object to the condemnation of Parcel No. 5. When the Szabos and PennDOT
were unable to agree on the amount of compensation for this taking, the Szabos filed
a petition for appointment of a board of viewers at Civil Action No. 2013-7608 (De
Jure Petition). The trial court appointed a board of viewers.
               In the months following the appointment of the board of viewers,
PennDOT began construction on its State Route 19 expansion.                           During the
construction, PennDOT’s contractors entered onto portions of the Szabos’ property
not identified in the plan filed with PennDOT’s Declaration. The Szabos had a title
search done and their property surveyed. By comparing the survey results with the


2
 This recital of the history of this litigation is derived from Paragraphs 5 and 6 of the Szabos’ De
Facto Petition.
                                                 2
Declaration’s plans, the Szabos discovered that portions of their property, i.e.,
Parcels No. 1 and 9, had been erroneously identified on the Declaration as owned by
other persons.
             In response to this discovery, the Szabos filed a “Petition for
Evidentiary Hearing,” contending that the plans attached to the Declaration were
incorrect. They docketed this petition in the de jure proceeding at Civil Action No.
2013-7608. Supplemental Reproduced Record at 1b-8b (S.R.R. __). The petition
sought a hearing to determine the precise real property that PennDOT condemned
for the road project and the true owners thereof. PennDOT opposed the request,
arguing that the trial court lacked jurisdiction because the Szabos had not filed timely
preliminary objections to its Declaration. The trial court agreed with PennDOT and
denied the Szabos’ petition for an evidentiary hearing.           The Szabos sought
permission to appeal the trial court’s order, which this Court granted.
             This Court reversed the trial court and remanded the matter for an
evidentiary hearing to determine what property was subject to the taking and the
proper compensation therefor. Szabo v. Department of Transportation, 159 A.3d
604 (Pa. Cmwlth. 2017) (Szabo I).          This Court concluded that because the
Declaration did not accurately identify the property to be condemned, it did not
provide effective notice. PennDOT petitioned the Pennsylvania Supreme Court for
allowance of appeal, which was granted as to the following two questions:

             (1)    By failing to file preliminary objections pursuant to
                    section 306 of the Eminent Domain Code, 26 Pa. C.S.
                    [§]306, did [the Szabos] waive their right to assert
                    ownership and seek additional just compensation for the
                    condemnation of two parcels which were allegedly
                    mistakenly depicted as belonging to two other legal
                    entities in plans attached to the declaration of taking?


                                           3
            (2)    Did [PennDOT’s] alleged mistake in the plans attached to
                   a declaration of taking [] constitute the failure to
                   adequately establish the extent or effect of the taking,
                   thereby excusing [the Szabos] from filing preliminary
                   objections under section 306 of the [Eminent Domain
                   Code]….

Szabo II, 202 A.3d at 58.
            On February 20, 2019, the Supreme Court affirmed this Court. It
concluded that although the Declaration informed the Szabos of the taking of part of
Parcel No. 5, it did not advise them that other property owned by the Szabos would
be taken. The Supreme Court stated that

            [a]lthough harmless procedural irregularities “will not set aside
            a condemnation decision,” Norberry One Condominium
            Association v. PennDOT, 805 A.2d 59, 67 (Pa. Cmwlth. 2002),
            the procedural defect here went to the “heart of a declaration of
            taking.” [West Whiteland v. Department of Transportation, 690
            A.2d 1266, 1269 (Pa. Cmwlth. 1997)]. By inadequately
            identifying the extent or effect of the taking, [PennDOT] misled
            the Szabos and denied them an opportunity to secure just
            compensation.

Szabo II, 202 A.3d at 64. The Supreme Court directed an evidentiary hearing by the
trial court “to determine the property interests affected by [PennDOT’s] taking, and
the board of viewers can determine the proper compensation for that property.” Id.
            While Szabo II was pending, the Szabos filed the instant De Facto
Petition, which alleged a de facto taking of Parcels No. 1 and 9 as a result of
PennDOT’s road expansion project.         PennDOT filed preliminary objections,
asserting that this Court’s decision in Szabo I, which granted the Szabos’ Petition
for an Evidentiary Hearing, gave the Szabos the very relief they requested in their
De Facto Petition. PennDOT also contended that the trial court’s consideration of
the Szabos’ new petition could “potentially undermine and usurp the judicial

                                          4
authority of [the] Supreme Court.” PennDOT Preliminary Objections at 4, ¶28;
Reproduced Record at 51a (R.R. ___). The Szabos countered that their De Jure
Petition dealt only with Parcel No. 5 and not Parcels No. 1 and 9.
               On September 10, 2018, the trial court sustained PennDOT’s
preliminary objections and dismissed the De Facto Petition.                      The trial court
explained:

               The ownership issues on appeal to the Supreme Court concern
               Parcels 1 & 9. Regardless of how the Supreme Court rules, its
               decision will directly impact ownership of Parcels 1 & 9. If
               [PennDOT] were [sic] to prevail in the appeal, the [Szabos]
               would not have any ownership interest in the parcels. If
               [PennDOT] does not prevail in the appeal, then the [Szabos]
               would be granted an evidentiary hearing to determine their
               ownership interest in the parcels. Consequently, conducting an
               evidentiary hearing in this proceeding about the [Szabos’]
               ownership interest[] in Parcels 1 & 9 would obviate the Supreme
               Court’s []review and that is something that the trial court cannot
               do…. Although the trial court is mindful that [the De Jure
               petition] and [the De Facto petition] are separate actions, the
               issues are identical.

Trial Court 1925(a) Opinion, 11/30/2018, at 3-4; R.R. 149a-50a. The Szabos then
filed this appeal.
                                             Appeal

               On appeal,3 the Szabos raise two arguments. First, they argue that the
trial court erred in dismissing their De Facto Petition without conducting an
evidentiary hearing on the factual issues raised therein. Second, they argue that the
trial court erred in holding that the De Facto Petition raised issues identical to those

3
  This Court’s scope of review determines whether the trial court abused its discretion or
committed an error of law and whether the trial court’s factual findings are supported by substantial
evidence. Linde Enterprises, Inc. v. Lackawanna River Basin Sewer Authority, 911 A.2d 658, 660
n.3 (Pa. Cmwlth. 2006).
                                                 5
pending before the Pennsylvania Supreme Court in Szabo II. For its part, PennDOT
argues that the Szabos’ appeal is moot in light of the Supreme Court’s recent ruling
in Szabo II.

                           Motion to Dismiss Szabos’ Appeal

               PennDOT has moved to dismiss the Szabos’ appeal as moot.4
PennDOT argues that the Supreme Court’s ruling in Szabo II has granted the Szabos
the very same relief that they seek in their De Facto Petition. It also asserts that the
De Facto Petition is barred by collateral estoppel. In response, the Szabos assert
that this appeal involves the de facto taking of Parcels No. 1 and 9. In contrast, the
de jure proceeding involves the compensation to which they are entitled for the
taking of Parcel No. 5.
               Generally, courts do not decide moot issues. Public Defender’s Office
of Venango County v. Venango County Court of Common Pleas, 893 A.2d 1275,
1279 (Pa. 2006). A case is moot if there exists no actual case or controversy, and
the controversy must continue at every stage of a judicial proceeding. Mistich v.
Pennsylvania Board of Probation and Parole, 863 A.2d 116, 119 (Pa. Cmwlth.
2004). This Court has described “actual case or controversy” as follows:

               (1) a legal controversy that is real and not hypothetical, (2) a
               legal controversy that affects an individual in a concrete manner
               so as to provide the factual predicate for a reasoned adjudication,
               and (3) a legal controversy with sufficiently adverse parties so as
               to sharpen the issues for judicial resolution.




4
 In the alternative, PennDOT requests that this Court hold the appeal in abeyance until the trial
court conducts an evidentiary hearing in the de jure proceeding.
                                               6
Id. A case is moot when a determination will not have any practical effect on the
existing controversy. Butler v. Indian Lake Borough, 14 A.3d 185, 188 (Pa. Cmwlth.
2011).
             The Szabos filed their De Jure Petition to have a board of viewers
appointed to determine the amount of just compensation owed to them for the
condemnation of their property. When the Szabos realized that the plans attached to
the Declaration did not accurately depict the property affected by PennDOT’s
condemnation, they petitioned for an evidentiary hearing to determine “the extent
and nature of the property interest condemned [in this matter] and the owners
thereof.” Petition for Evidentiary Hearing at ¶10; S.R.R. 5b.
             In Szabo II, the Supreme Court considered whether the Szabos had
“waive[d] their right to assert ownership and seek additional just compensation for
the condemnation of two parcels which were allegedly mistakenly depicted as
belonging to two other legal entities in plans attached to the declaration of taking[.]”
Szabo II, 202 A.3d at 58. The litigation related to the true ownership of Parcels No.
1 and 9, which were identified in the Declaration as owned by persons other than the
Szabos. The Supreme Court directed the trial court to “hold an evidentiary hearing
to determine the property interests affected by the taking, and the board of viewers
[to] determine the proper compensation for that property.” Id. at 64.
             We reject the Szabos’ contention that the Supreme Court’s directive
does not moot the De Facto Petition. The trial court’s remand hearing will determine
ownership of all the property condemned for the State Route 19 project, which
includes portions of Parcels No. 1 and 9. Thereafter, a board of viewers will
determine the compensation due to the Szabos for all of their property interests taken




                                           7
by the condemnor. In short, in Szabo II the Supreme Court gave the Szabos the very
relief they seek in the De Facto Petition.
               The Szabos’ contention that Szabo II did not moot this appeal because
their De Jure Petition was limited to Parcel No. 5 is unavailing. The Szabos’
“Petition for Evidentiary Hearing” alleged that PennDOT’s Declaration was
inaccurate because

               it fails to show the entire property owned by [the Szabos] prior
               to the condemnation, and it depicts part of the property owned
               by [the Szabos] to be owned by two other legal entities. This
               error obviously makes a difference in the before and after area
               and effects (sic) the damages to be paid to [the Szabos] by
               [PennDOT].

Petition for Evidentiary Hearing at ¶7; S.R.R. 4b (emphasis added). To support their
request for an evidentiary hearing, the Szabos argued that the trial court was
“authorized to hold an evidentiary hearing when issues of fact arise which might
establish a de facto taking, as [was] the case” with the Szabos’ property interests.
Szabo Brief to the Trial Court at 4; S.R.R. 37b. The Szabos further asserted that in
the interests of judicial economy the trial court should determine “the damages
caused by a de jure taking and the de facto taking … in one proceeding.” Id. at 5;
S.R.R. 38b. In sum, the Szabos’ Petition for Evidentiary Hearing sought to enlarge
the scope of the ongoing de jure proceeding5 to cover the same issues raised in their
subsequent De Facto Petition.
               Alternatively, the Szabos argue that the ruling in Szabo II did not moot
their De Facto Petition because they can recover fees and costs in a de facto


5
  In fact, in Szabo II, the Supreme Court noted that the Szabos argued “that PennDOT perpetrated
a de facto taking of Parcels 1 and 9 when it did not include them in the de jure declaration of taking
for Parcel 5 and identified them as being owned by other parties.” Szabo II, 202 A.3d at 61.
                                                  8
proceeding that are not available in a de jure proceeding.                       In a de facto
condemnation, “a judgment awarding compensation to the condemnee for the taking
of property shall include reimbursement of reasonable appraisal, attorney and
engineering fees and other costs and expenses actually incurred.” Section 709 of the
Eminent Domain Code, 26 Pa. C.S. §709.                    In a de jure condemnation, the
condemnee’s reimbursement for those same items is limited to $4,000. Section
710(a) of the Eminent Domain Code, 26 Pa. C.S. §710(a).6
               In Szabo II, the Supreme Court held that PennDOT, “[b]y inadequately
identifying the extent or effect of the taking,” “misled the Szabos and denied them
an opportunity to secure just compensation.” Szabo II, 202 A.3d at 64 (emphasis
added). Thus, the Supreme Court remanded the matter for the trial court to “hold an
evidentiary hearing to determine the property interests affected by the taking, and
the board of viewers can determine the proper compensation for that property.” Id.
Stated otherwise, whether Parcels No. 1 and 9 were condemned under the
Declaration or taken de facto, the board of viewers will determine the proper
compensation owed for the taking.7 The fees and costs to be awarded to the Szabos,

6
  It states as follows:
         (a) General rule. – The owner of any right, title or interest in real property acquired
         or injured by an acquiring agency, who is not eligible for reimbursement of fees
         under section 306(g) (relating to preliminary objections), 308(d) (relating to
         revocation of condemnation proceedings) or 709 (relating to condemnee’s costs
         where no declaration of taking filed), shall be reimbursed in an amount not to
         exceed $4,000 per property, regardless of right, title or interest, as a payment toward
         reasonable expenses actually incurred for appraisal, attorney and engineering fees,
         except where the taking is for an easement related to underground piping for water
         or sewer infrastructure, in which case the reimbursement is limited to $1,000,
         regardless of right, title or interest.
26 Pa. C.S. §710(a).
7
  Notably, in his concurring opinion, Justice Wecht observed that determining whether a de facto
taking occurred with regard to the Szabos’ land was “for the [trial court] on remand, as part of its
                                                 9
under any legal theory, is a matter for the trial court to decide on remand in Szabo
II.
                                        Conclusion

               The evidentiary hearing ordered by our Supreme Court in Szabo II will
determine whether the Szabos own Parcels No. 1 and 9. At that point, a board of
viewers will determine the just compensation owed to the Szabos for all property
taken. For the above-stated reasons, this Court grants PennDOT’s motion to dismiss
the appeal as moot.

                                       _____________________________________
                                       MARY HANNAH LEAVITT, President Judge




fact-finding role in furtherance of the board of viewers’ determination of just compensation.”
Szabo II, 202 A.3d at 73 n.8 (Wecht, J., concurring).
                                             10
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Stephen J. Szabo and Mary B. Szabo,    :
                  Appellants           :
                                       :
            v.                         : No. 1380 C.D. 2018
                                       :
Commonwealth of Pennsylvania,          :
Department of Transportation           :


                                  ORDER


            AND NOW, this 19th day of June, 2019, the appeal of Stephen J. Szabo
and Mary B. Szabo in the above-captioned matter is dismissed as moot.

                                 _____________________________________
                                 MARY HANNAH LEAVITT, President Judge
