Background
Margaret Burns owns a 7.840-acre parcel in Horsham, Pennsylvania whose principal improvement — her home — abuts County Line Road on the Montgomery/Bucks County line. In August 2019, PennDOT filed a Declaration of Taking to widen the road, acquiring 0.114 acres from Burns’s property in fee simple. The Declaration was accompanied by a Plot Plan that showed a rectangular outline of Burns’s “masonry dwelling” sitting entirely outside the new right-of-way; the Plan appeared to carve out the house from the taking altogether.
Five years later, Burns hired a surveyor to prepare for the viewer hearing on her just-compensation claim. The surveyor’s measurements revealed a problem: the Plot Plan had understated the actual taking. Part of the house’s concrete porch and front steps — the sole means of access to the dwelling — fell within the expanded right-of-way that PennDOT had described as intentionally avoiding the house. In January 2025, Burns filed a Petition for Appointment of Viewers asserting four counts: Count I sought just compensation for the de jure partial taking; Count II sought relocation benefits; Count III sought damages under the Eminent Domain Code’s de facto condemnation provision, 26 Pa. C.S. §502(c), for the taking of the portion of her house not identified in the Declaration; and Count IV requested, in the alternative, an easement to allow Burns to rebuild the porch.
PennDOT filed preliminary objections to Counts II through IV, arguing (1) that the 30-day deadline in Section 306(a) of the Eminent Domain Code for challenging a declaration of taking had long since expired, barring Count III as waived; and (2) that this Court’s holding in 2800 N. Broad Street, LLC v. Department of Transportation, 259 A.3d 1022 (Pa. Cmwlth. 2021), precluded any de facto taking claim when a de jure declaration of taking had already been filed. The Montgomery County trial court agreed, sustained PennDOT’s preliminary objections, and struck Counts II through IV. Burns appealed the dismissal of Count III.
The Court’s Holding
Reversed and remanded. Writing for a unanimous panel, Senior Judge Leavitt resolved the appeal on two grounds and rejected PennDOT’s arguments at each step.
On the 30-day waiver issue, the court applied Szabo v. Department of Transportation, 202 A.3d 52 (Pa. 2019) (Szabo II), in which the Pennsylvania Supreme Court held that where a condemnor’s plot plan “did not establish the extent or effect of the taking,” the landowner is not bound by the Section 306(a) filing deadline. The Plot Plan in Burns’s case showed the dwelling rectangle as entirely excluded from the right-of-way expansion; the porch was not depicted at all, and the outer boundary of the taking was drawn several feet away from the dwelling. The court held that Burns could not reasonably have known from the Plot Plan that any part of her house was being condemned. “A condemnee should not be required to hire a surveyor in order to understand the precise bounds of a condemnor’s taking,” the panel wrote, and it would be impossible to complete a survey within the 30-day window. Because the Plot Plan was misleading, Section 306(b)’s waiver provision did not bar Count III.
On the de facto taking issue, the court drew on a line of cases permitting a petitioner to seek damages for both a de jure and a de facto condemnation in a single viewer proceeding. In Greenfield Township-Property Owners v. Department of Transportation, 582 A.2d 41 (Pa. Cmwlth. 1990), and York OPA, LLC v. Department of Transportation, 181 A.3d 5 (Pa. Cmwlth. 2018), the court had allowed condemnees to add de facto taking claims arising from circumstances not disclosed in the original declaration of taking. Szabo I established that an inaccurate declaration of taking is the functional equivalent of a condemnation “without the filing of a declaration of taking” under 26 Pa. C.S. §502(c)(1). The court rejected PennDOT’s reliance on 2800 N. Broad Street, explaining that the earlier case addressed only whether economic losses to remaining property could be reframed as a de facto taking — it never involved a plot plan that misidentified the property being condemned and did not disturb York OPA or Greenfield Township-Property Owners. Because PennDOT’s Plot Plan excluded the porch from the depicted taking while the actual taking included it, PennDOT bore the burden of accurately notifying Burns of the condemnation’s contours and had not done so. Count III stated a valid de facto taking claim, and the board of viewers may assess both de jure and de facto damages in a single proceeding. The court remanded for the trial court to make a factual and legal determination on the de facto taking of the porch and steps.
Key Takeaways
- An inaccurate or misleading plot plan filed with a PennDOT declaration of taking does not start the 30-day clock under Section 306(a) of the Eminent Domain Code. If the plan understates the actual taking — for example, by showing the condemnee’s dwelling as excluded from the right-of-way when the taking actually reaches into the house — the landowner may challenge the undisclosed portion as a de facto condemnation at any time, even years later when a survey reveals the error.
- A single petition for appointment of viewers may simultaneously pursue just compensation for a de jure partial taking under Section 502(a) and damages for a de facto taking under Section 502(c) when the inaccurate declaration of taking effects both. 2800 N. Broad Street does not foreclose this dual-track claim; it addresses only the distinct theory that a de jure partial taking automatically constitutes a de facto taking of the remainder.
- The burden of accurately identifying all property condemned falls on the condemnor, not the landowner. PennDOT’s obligation to describe the taking precisely means that a plot plan’s failure to depict a structure feature (such as a porch) that is actually within the right-of-way cannot be cured by arguing the condemnee should have sought a survey sooner.
- Preliminary objections in eminent domain proceedings raising purely legal issues do not require an evidentiary hearing, briefs, or oral argument unless the condemnee concedes or the statute mandates one. Where the issue is legal, the trial court may rule on the pleadings and the documents of record.
Why It Matters
Burns v. PennDOT is a useful addition to the Pennsylvania eminent domain practitioner’s toolkit. It confirms — and extends — the Szabo principle that an inaccurate plot plan not only tolls the 30-day filing deadline but also generates an independent de facto taking claim. For condemnees, the decision means that a belated discovery — often arising only when a surveyor prepares for the board of viewers hearing — that a PennDOT plot plan omitted or mislocated structures on the condemned property is not fatal; the landowner retains the right to seek just compensation for what was actually taken, regardless of when the discrepancy comes to light.
For condemnors and their counsel, Burns reinforces that plot plan accuracy is not a formality. A plan that appears to exclude a structure — even by implication, as when the right-of-way boundary is drawn several feet shy of a rectangular dwelling footprint — will be read in favor of the landowner. If the actual taking reaches the dwelling or any appurtenance, a revised or supplemental plan filed before the owner discovers the error is far preferable to litigating de facto condemnation years into the eminent domain proceeding.