Commonwealth v. Greenfield Township—Property Owners

PELLEGRINI, Judge. The Commonwealth of Pennsylvania, Department of Transportation (PennDot) appeals from an Order of the Court of Common Pleas, Erie County, which ordered Penn-Dot to pay damages to Dan F. and Arlene DeMarco (DeMarcos) for the de facto taking of 68.77 acres of their property. The DeMarcos were the owners of approximately 100 acres in Greenfield Township, Erie County. On September 18, 1985, PennDot filed a declaration of taking which condemned 15.08 acres of the DeMarcos’ land for the construction of the Southern Tier Expressway (Expressway). The DeMarcos never filed preliminary objections to the declaration of taking. PennDot paid the DeMarcos $16,300 for the condemned property and took possession on May 5, 1986. The condemnation bisected the remaining DeMarcos’ property into two parcels, one containing 16.86 acres north of the Expressway and the other containing 68.77 acres south of the Expressway. As a result of the condemnation, the DeMarcos were denied all access to the southern portion of their property. PennDot attempted to cure this lack of access by condemning a portion of property, referred to as “Parcel 21,” owned by an adjacent landowner and deeding that property over to the DeMarcos to provide them them with a right-of-way to the southern portion of their property. The DeMarcos found this solution failed to give them access because Parcel 21 was a gully with a ravine running through the land and was impassable by car. Thereafter, on December 17, 1986, the DeMarcos petitioned for the Appointment of a Board of Viewers (Board) alleging a de facto taking of the southern 68.77 acres of their property as a result of that property being landlocked. A viewing was held and the [117] Board found that the southern 68.77 acres were not landlocked because there was access to that property via Parcel 21. Consequently, the Board determined that a de facto taking had not occurred. The Board assessed the DeMarcos’ damages at $26,000, less $16,300 which had previously been paid to the DeMarcos, plus interest. The DeMarcos appealed the Board’s findings to the Court of Common Pleas in Erie County. The trial court determined that the southern portion of the DeMarcos’ property was landlocked because Parcel 21 did not provide any access to the DeMarcos’ property, and, therefore, a de facto taking of that property had occurred.1 The trial court also determined that the DeMarcos were entitled to damages for the effects of PennDot landlocking the southern portion of the property, separate and above from the damages awarded by the Board which were to be determined by a jury. The trial court further found that consequential damages were inappropriate because there had been a de facto taking. PennDot then appealed the trial court’s decision to this court, alleging that a de facto taking had not occurred, and that the DeMarcos were not entitled to the damages they were awarded. The issues now before us are whether the DeMarcos are precluded from alleging a de facto taking because they did not file preliminary objections to the declaration of taking, and whether the trial court erred by determining that there was a de facto taking of the southern 68.77 acres and finding that the DeMarcos were entitled to both damages awarded from the Board plus additional damages to be awarded by a jury. PennDot contends that the DeMarcos are now precluded from alleging a de facto taking of their property because they never filed preliminary objections to Penn118 Dot’s declaration of taking.2 They rely on the case of Nelis v. Redevelopment Authority of Allegheny County, 12 Pa. Commonwealth Ct. 338, 315 A.2d 893 (1974), for the proposition that when a formal declaration of taking has already been filed, the declaration of taking precludes the applicability of the petition alleging a de facto taking when preliminary objections have not been raised. However, in City of Pittsburgh v. Gold, 37 Pa.Commonwealth Ct. 438, 390 A.2d 1373 (1978), this court held that a landowner who had suffered damages to his property as the result of a condemnation proceeding but who had not filed preliminary objections to the declaration of taking, was not precluded from alleging a de facto taking because the landowner learned of the damage to his property two years after the declaration of taking was filed. Similarly, in this case, the DeMarcos did not file preliminary objections at the time the declaration of taking was filed because they were unaware that their property had been landlocked. The DeMarcos were reassured by PennDot that a right-of-way to their property would be provided when Parcel 21 was deeded over to them. The trial court found that the DeMarcos’ 30-day appeal period was not tolled at the time Parcel 21 was condemned because the DeMarcos were not parties to the proceeding condemning Parcel 21. Therefore, based on the holding in Gold, we find that the DeMarcos’ failure to file preliminary objections in order to preserve their right to allege a de facto taking was not fatal to their case. PennDot admits that they are liable to the DeMarcos for consequential damages, but contend that the trial court erred in finding a de facto taking because PennDot had no need for all of the DeMarcos’ land never entered and if [119] PennDot diminished the value of the land, the DeMarcos would be entitled to receive consequential damages pursuant to Section 612 of the Code.3 In order to establish whether consequential damages are more appropriate than condemnation damages for a de facto taking, PennDot’s actions must be examined to see whether they only affected the property or whether they substantially deprived the DeMarcos of the use and enjoyment of their property, and the deprivation was the direct and necessary consequence of PennDot’s actions. McGaffic v. Redevelopment Authority of the City of New Castle, 120 Pa.Commonwealth Ct. 199, 548 A.2d 653 (1988). Contrary to PennDot’s assertion, neither physical appropriation nor a formal divestiture of an owner’s title are required to create a right to file a de facto taking. The law is well settled that when 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, a de facto taking will be deemed to have occurred. Petition of Borough of Boyerton, 77 Pa.Commonwealth Ct. 357, 466 A.2d 239 (1983). Consequential damages only apply to property affected by a de jure or de facto taking or an activity by which a condemnor changes a grade of road or highway, permanently interferes with access to property, or causes injury to surface support. In this case, the trial court properly determined that the DeMarcos had established a de facto taking because PennDot had deprived the DeMarcos of the beneficial use and enjoyment of their land because the property was landlocked, and the deprivation was a direct consequence of the taking of their 15.08 acres for the construction of the Expressway. Although PennDot was not in possession of [120] the 68.77 acres and did not have title to that property, we find that because they substantially deprived the DeMarcos of the use and enjoyment of their property, there was a de facto taking of the DeMarcos’ southern 68.77 acres, and the DeMarcos were entitled to condemnation damages as a result of that taking. The DeMarcos contend that PennDot is precluded from raising the issue of whether the amount of money awarded by the Board was proper because PennDot did not file post-trial motions to preserve the issue for appeal to this court. While it is true that a litigant must make a timely objection at trial and must raise an issue on post-trial motions to preserve the issue for appeal to this court4, that argument is inapplicable because the trial court never entered a final order and judgment from which exceptions had to be taken. The trial court only determined that a de facto taking had occurred and left the amount of damages to be awarded for a jury to determine. To date, a jury has not heard this case to determine damages. PennDot argues, and we agree, that the trial court erred in determining that the DeMarcos were entitled to damages for the effects of their southern 68.77 acres being landlocked in addition to damages awarded by the Board. An appeal in an eminant domain case is considered a trial de novo, and neither the Board’s report nor any of their findings, including the amount of the award, are admitted for the appeal. Kellman Trust Fund v. Commonwealth, Department of Transportation, 24 Pa.Commonwealth Ct. 102, 354 A.2d 583 (1976). In any proceeding to determine damages for a de facto taking, an aggrieved landowner is only entitled to receive damages which equal the difference between the fair market value of their property before the taking and the fair market value after the taking.5 [121] Accordingly, for the reasons stated in this opinion, we affirm the trial court’s decision determining that there was a de facto taking of the southern 68.77 acres and reverse its decision granting the DeMarcos additional damages for the effects of their property being landlocked, separate from and above the damages awarded by the Board. ORDER AND NOW, this 7th day of September, 1990, the Order of the Court of Common Pleas, Erie County, No. 3360-A-1985, dated March 21, 1989, finding a de facto taking is affirmed, and the order of payment of damages of $26,000, less partial payment of $16,300 plus interest and additional damages for the landlocking of the southern 68.77 acres, is reversed. Footnotes [1] Mr. DeMarco testified that Parcel 21 was like a gully with a stream running through the parcel. (T. 50-51). He also stated that Parcel 21 was not passable by car, truck or farm tractor. (T. 51). Upon viewing the property, the trial judge concurred with Mr. DeMarco that Parcel 21 did not provide the DeMarcos with access to and from their property. [2] Section 406(a) of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § l-406(a) provides: Within thirty days after being served with notice of condemnation, the condemnee may file preliminary objections to the declaration of taking. The court upon cause shown may extend the time for filing preliminary objections. Preliminary objections shall be limited to and shall be the exclusive method of challenging----(4) the declaration of taking. Failure to raise these matters by preliminary objections shall constitute a waiver thereof. [3] Section 612 of the Code, 26 P.S. § 1-612, provides that all condemnors, including the Commonwealth of Pennsylvania, shall be liable for damages to property abutting the area of improvement, resulting from change of grade of a road or highway, permanent interference with access thereto, or injury to surface support, whether or not any property is taken. [4] See In re Appeal of Pyle, 70 Commonwealth Ct. 642, 453 A.2d 744 (1982). [5] Section 602(a) of the Code, P.S. § l-602(a) provides that just compensation shall consist of the difference between the fair market value [121] of the condemnee’s entire property interest immediately before the condemnation and as unaffected thereby and the fair market value of his property interest remaining immediately after such condemnation and as affected thereby, and such other damages as are provided in this code.