A Pennsylvania condemnee has two procedural mechanisms to assert a de facto taking. Which mechanism is appropriate depends upon whether a declaration of taking has been filed. A condemnee may file a petition for appointment of board of view before a declaration of taking is filed or file preliminary objections after a declaration of taking is filed. The Commonwealth Court recently reaffirmed that preliminary objections are the exclusive method to allege a de facto condemnation after a declaration of taking is filed.
In Lang v. Dep't of Transportation, (Pa. Commw. Feb. 18, 2011), PennDOT filed a declaration of taking and the condemnee did not file any preliminary objections. The condemnee later filed a petition for viewers as a separate action alleging a de facto taking. PennDOT filed preliminary objections to the petition alleging that the condemnee waived his right to claim a de facto taking by not filing preliminary objections to the declaration of taking.
The trial court and the Commonwealth Court both held that the failure to file preliminary objections after a declaration of taking is filed precludes the condemnee’s ability to assert a de facto taking in any action.