Lang v. Commonwealth, Department of Transportation
13 A.3d 1043
| Pa. Commw. Ct. | 2011Background
- DOT filed a declaration of taking for Route 28 widening in March 2009, condemning Lang's Millvale Industrial Park property.
- Lang, record owner, did not file preliminary objections to the declaration of taking.
- In July 2009, Lang sought estimated just compensation; First EJC order granted $2,000,000 without prejudice to de facto claim.
- Second EJC order (31) preserved all other issues, including date of possession and taking; DOT paid the amount in August 2009.
- In October 2009, Lang petitioned for viewers alleging pre-condemnation de facto taking; DOT raised preliminary objections claiming waiver.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Lang waive de facto claim by not filing preliminary objections? | Lang—Nelis II no longer mandatory; EJC orders preserve issue. | DOT—waiver applies; preliminary objections required to challenge taking. | Waiver applies; Lang failed to raise de facto issue via preliminary objections. |
| Does Nelis II remain good law under the Current Code? | Lang—Nelis II controls; Section 502(c)(1) permits de facto claims without declaration. | DOT—Nelis II remains valid; procedural waiver still governs. | Nelis II remains controlling doctrine; de facto claim requires preliminary objections after declaration. |
| Do the ECJ orders constitute adjudications or extend time for preliminary objections? | Lang—orders extended time and created adjudications favorable to de facto claim. | DOT—orders did not address power to condemn or extend time for objections. | Orders did not constitute adjudications nor extend filing time; no waiver created. |
Key Cases Cited
- Nelis v. Redevelopment Authority of Allegheny County, 4 Pa.Cmwlth. 533, 287 A.2d 880 (1972) (Pa. Cmwlth. 1972) (de facto taking must be raised by preliminary objections after declaration)
- Nelis II, 12 Pa.Cmwlth. 338, 315 A.2d 893 (1974) (Pa. Cmwlth. 1974) (failure to raise de facto claim via preliminary objections waives right)
- Erie Municipal Airport Authority v. Agostini, 127 Pa.Cmwlth. 360, 561 A.2d 1281 (1989) (Pa. Cmwlth. 1989) (preliminary objections may address de facto condemnation where applicable)
- In re Condemnation by Dep't of Transp. (Bernstein Appeal), 112 Pa.Cmwlth. 368, 535 A.2d 1210 (1988) (Pa. Cmwlth. 1988) (failure to raise condemnation issues by preliminary objections results in waiver)
- In re Condemnation by Dep't of Transp. (Saul Appeal), 98 Pa.Cmwlth. 527, 512 A.2d 79 (1986) (Pa. Cmwlth. 1986) (owner must raise de facto issue via preliminary objections to declaration)
- Coatesville, 898 A.2d 1186, (Pa.Cmwlth. 2006) (Pa. Cmwlth. 2006) (review of preliminary objections; waiver framework)