IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Condemnation by the :

Commonwealth of Pennsylvania, :

Department of Transportation, of :

Right-of-Way for State Route 1032, :

Section B02, in the Borough of :

Rochester: :

:

Cronimet Corporation : No. 1358 C.D. 2015

: Argued: April 12, 2016

v. :

:

Commonwealth of Pennsylvania, :

Department of Transportation :

:

Appeal of: Cronimet Corporation :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION 

BY JUDGE SIMPSON FILED: May 5, 2016

Cronimet Corporation (Landowner) petitioned to reopen an eminent 

domain case in which the Pennsylvania Department of Transportation (DOT) 

obtained a temporary construction easement over its property pursuant to the 

Eminent Domain Code (Code), 26 Pa.C.S.§§101-1106. Previously, Landowner and 

DOT settled the case. However, after receiving just compensation and discontinuing 

the action, Landowner sought to recover additional damages under the Code for 

destruction of property that occurred while DOT occupied the easement. 

Landowner argued DOT owed a duty to restore the property to its pre-taking 

condition. The Court of Common Pleas of Beaver County (trial court) determined 

the damages sounded in trespass, not eminent domain; thus, it denied the petition 
2

to reopen. Landowner appealed, asserting the damages stem from the taking. 

Upon review, we affirm.

I. Background

This matter arose from a declaration of taking for Landowner’s 

property located at 421 Railroad Street, Rochester, Pennsylvania 15074 (Property). 

Landowner used the Property as a weigh station for 18-wheel tractor-trailer trucks 

that hauled scrap metal to another property it owned nearby, and for two office 

buildings. Under the declaration, DOT acquired 1,963 square feet of right of way, 

4,494 square feet for an aerial easement and 13,517 square feet for a temporary 

construction easement (Easement). DOT obtained the Property for the purpose of 

widening a highway access ramp leading from New York Avenue to Harrison 

Street, situated above and adjacent to the Property. 

In order to ascertain compensation for the taking, Landowner 

requested in May 2011 an appointment of a Board of Viewers (Board) from the 

trial court. The trial court granted the petition and appointed a Board that viewed 

the Property and held a hearing.

The Board filed a report awarding Landowner $175,000.00 in general 

damages, $4,000.00 corresponding to appraisal, attorney and engineering fees 

permitted under Section 710 of the Code, 26 Pa. C.S. §710, and gave DOT credit for 

an estimate of just compensation payment of $5,100.00 (Report). The Report also 

awarded delay damages from October 25, 2011 until the date of payment. 
3

In May 2012, Landowner filed an appeal from the Report with the 

trial court and demanded a jury trial (2011 Case). Landowner alleged the 

compensation was inadequate because the loss of the Easement area limited its 

ability to accommodate 18-wheel trucks, which accommodation was essential to its 

business.

The only matter before the trial court was the determination of the fair 

market value of the Property interest before condemnation, after condemnation, 

and the amount of resulting damages. The trial court scheduled the trial for 

January 2014. However, the parties reached a settlement as to damages, and 

Landowner filed a praecipe to discontinue the case in September 2013. 

Relevant here, the parties entered a stipulation in January 2014 that 

stated: 

the within condemnation proceedings are hereby settled 

and satisfied in the net amount of One Hundred and 

Seventy Five Thousand Dollars ($175,000.00), which 

sum is accepted by [Landowner] in full settlement of all 

damages payable under Chapter 7 of the [Code] [(relating 

to just compensation and other damages)], and in full 

settlement of any special damages for displacement under 

Chapter 9 of the [Code].

Reproduced Record (R.R.) at 75a (Stipulation). In February 2014, Landowner 

received the balance due for damages.
4

DOT entered into a contract with Mosites Construction Company 

(Contractor) to perform improvements to the highway ramp. Contractor vacated 

the Property and the area of the Easement on or about August 29, 2014.

In May 2015, Landowner filed a petition to reopen the 2011 Case. 

Landowner alleged it discovered damage to the Property only after Contractor 

vacated it. Landowner alleged the following damages related to the improvements: 

(1) damage to both sides of cement wall on south side of Property; (2) removal of 

parking curb at west end of cement wall; (3) removal of fencing from southeast 

end and along west end of Property; (4) damage to areas of asphalt where 

Contractor cranes were positioned; (5) removal of gate and fencing at Property 

entrance; (6) failure to extend new wall connecting existing wall at northwest 

corner of Property; and, (7) damage to exterior of Landowner’s building located 

east of Property entrance. There is no dispute that the area where the damage 

occurred was located within the Easement. Landowner asserted these damages 

substantially deprived it of the use of the Property. Landowner also claimed DOT 

owed a duty of restoration of the Property to its pre-taking condition.

The trial court heard argument on the petition to reopen. Landowner 

argued DOT had a duty to restore the Property under its Right-of-Way manual. 

Landowner admitted the Code did not impose a duty on DOT to restore 

condemned property to its pre-taking condition. See Certified Record (C.R.), Item 

No. 21 (transcript of oral argument) at 11. Landowner also acknowledged the 

Code did not provide a mechanism for reopening an eminent domain case once just 
5

compensation is paid. Id. Landowner filed a separate lawsuit in trespass against 

DOT and Contractor out of an abundance of caution. Id. at 13.

After argument, the trial court denied the petition, determining the 

claim involved negligent conduct and damages of a temporary rather than 

permanent nature. In its four-page order, the trial court reasoned Landowner’s 

claim sounded in trespass. As a result, the Code offered no remedy. 

Landowner appealed. The trial court declined to issue an opinion 

pursuant to Pa. R.A.P. 1925(a); instead, the trial court stated its earlier order shall 

serve as its opinion. 

Both parties briefed the issue.1 After hearing argument, the matter is 

ready for disposition.

II. Discussion

On appeal to this Court,2 Landowner asserts the trial court erred in 

determining the damages were recoverable only in trespass. Landowner urges this 

 

1

Landowner filed an application to strike DOT’s brief two weeks before oral argument. 

We note Landowner did not file a reply brief. Landowner seeks to strike DOT’s brief because it 

allegedly includes facts that are not of record. This Court is bound by the facts certified in the 

record on appeal. Cambria Cnty. Mental Health/Mental Retardation v. Pa. State Civil Serv. 

Comm’n (Cotton), 756 A.2d 103 (Pa. Cmwlth. 2000). Further, we shall not rely on any factual 

averments in DOT’s brief that do not appear of record. Millili v. Dep’t of Transp., Bureau of 

Driver Licensing, 745 A.2d 111 (Pa. Cmwlth. 2000); Chapin v. Dep’t of Pub. Welfare (Pa. 

Cmwlth., No. 2193 C.D. 2009, filed July 28, 2010), 2010 WL 9515742 (unreported). From our 

review, DOT’s allegations appear in the transcript of the argument in the certified record. 

Accordingly, we deny Landowner’s application.
6

Court to follow federal case law that permits recovery of subsequent damages 

through eminent domain proceedings.

DOT responds that the trial court properly determined that damages, 

to the extent any are recoverable, may only be sought through a separate tort claim. 

DOT argues that when the intrusion on property is a result of an independent 

contractor’s actions, the landowner must prove the damages were authorized or 

directed by DOT. In addition, DOT emphasizes Landowner settled the eminent 

domain claims for an agreed upon sum, which it paid. As a result, Landowner 

relinquished any claims for subsequent damages under the Code. DOT contends 

Landowner assumed the risk of additional damage by settling the matter before 

Contractor vacated the Property.

In order for a landowner to seek damages under the Code, the 

damages must be the result of the actions of an entity clothed with the power of 

eminent domain. In re Condemnation by Com. Dep’t of Transp. of Certain 

Property in Borough of Bellevue, 827 A.2d 544 (Pa. Cmwlth. 2003). The Code 

provides an exclusive procedure to govern condemnations of property for public 

purpose and the assessment of damages. 26 Pa. C.S. §102.

 

(continued...)

2

“In eminent domain cases, this Court reviews whether the trial court committed an 

abuse of discretion or an error of law. When an appeal presents a question of law ... our scope 

of review is plenary.” In re PPL Elec. Utils. Corp. of Real Estate Situate in Schuylkill Cnty., 68 

A.3d 15, 18 n.5 (Pa. Cmwlth. 2013) (citation omitted). 
7

Generally, where a landowner suffers specific damage to his property 

as a result of the negligent acts of a party with the power of eminent domain, the 

proper action lies in trespass. Poole v. Twp. of Dist., 843 A.2d 422 (Pa. Cmwlth. 

2004); Enon Valley Tele. Co. v. Market, 493 A.2d 800 (Pa. Cmwlth. 1985). 

However, where the damages amount to a de facto taking that deprives a 

landowner of the use or access to his property, a landowner’s exclusive remedy lies 

in eminent domain. Fulmer v. White Oaks Borough, 606 A.2d 589 (Pa. Cmwlth. 

1992).

The issue before this Court is a purely legal one as to the proper 

procedure for obtaining a remedy. We consider whether the damages Landowner 

seeks are recoverable under the Code, or in an action lying in tort. 

A. Eminent Domain or Tort Action

“In determining whether a particular action is an exercise of eminent 

domain or trespass, we must focus upon the nature of the acts complained of.” 

Poole, 843 A.2d at 424 (quoting Fulmer, 606 A.2d at 590). We also consider the 

nature of the damages, and whether they constitute a de facto taking or are 

reparable. Fulmer. “[I]f the damage ... flows ... from some tortious act, the 

injured party must proceed in trespass.” City of Pittsburgh v. Gold, 390 A.2d 

1373, 1376 (Pa. Cmwlth. 1978).

Numerous cases hold that, where negligence is alleged, a complaint in 

trespass is proper. See, e.g., Daw v. Dep’t of Transp., 768 A.2d 1207 (Pa. Cmwlth. 

2001), appeal dismissed, 832 A.2d 1064 (Pa. 2003); Enon; Scherbick v. Cmty. 
8

Coll. of Allegheny Cnty., 418 A.2d 791 (Pa. Cmwlth. 1980); Steckley v. Dep’t of 

Transp., 407 A.2d 79 (Pa. Cmwlth. 1979), aff’d, 429 A.2d 1112 (Pa. 1981).

Further, when damages are caused by an independent contractor, this Court holds a 

landowner’s remedy is an action in tort against the contractor. Deets v. 

Mountaintop Area Jt. Sanitary Auth., 479 A.2d 49 (Pa. Cmwlth. 1984).

1. Nature of the Acts

This Court consistently holds that where a landowner suffers specific 

damage to his property as a result of negligent or tortious acts, the proper action 

lies in trespass. Poole; Wagner v. Borough of Rainsburg, 714 A.2d 1164 (Pa. 

Cmwlth. 1998); Fulmer; Gold. Specifically, “acts not performed in the exercise of 

eminent domain and that are not the immediate, necessary or unavoidable 

consequence of that exercise cannot create a cause of action in eminent domain.” 

Wagner, 714 A.2d at 1166. By contrast, acts that deprive an owner of use of 

property constitute a de facto taking in the nature of eminent domain. Wagner

(contractor placement of shale on driveway deprived owner of use); Elser v. Dep’t 

of Transp., 651 A.2d 567 (Pa. Cmwlth. 1994) (deliberate occupation of driveway is 

act in eminent domain).

We addressed the distinctions between eminent domain and trespass 

proceedings in Poole. There, the landowners sued the township in trespass, asserting 

the township employees or contractors entered their property, and by failing to use 

reasonable care in operating its vehicles and equipment, caused erosion and stones to 

be deposited on the property. The trial court granted summary judgment to the 

township, holding landowners’ sole remedy was in eminent domain. We disagreed. 
9

In holding that the landowners stated a proper claim in trespass, the 

Poole Court examined the act complained of and the resulting damages. We 

emphasized the type of act that reflects eminent domain is an entity’s “ent[ry] and 

appropriat[ion]” of the petitioner’s property. Id. at 425 (emphasis in original). We 

explained when the damages are not covered by a provision of the former code, see

n.3 infra, a landowner may proceed in trespass. Id. (discussing Fulmer; Enon;

Steckley). We also noted that case law supports recovery in trespass when a 

landowner attributes damages to negligent as opposed to intentional acts. 

The Poole Court applied the factors discussed in Fulmer in 

determining whether the remedy for damages lies in trespass or eminent domain. 

In Fulmer, the landowner filed a trespass and negligence action against the 

borough for exceeding its right-of-way and destroying shrubs and trees on its 

property. The trial court granted summary judgment in the borough’s favor, 

holding eminent domain offered the sole remedy. We affirmed, holding that the 

act complained of sounded in eminent domain. In so doing, this Court distilled 

factors from prior decisions that allowed a landowner to proceed in trespass.

One such factor was whether the act was intentional or accidental. 

Fulmer. We reasoned the occupation of property showed a condemnor’s intention 

to take or appropriate the property. When the act complained of was deliberate and 

intended, even if the consequence was not intended, the act is in the nature of 

eminent domain. Id. However, destruction that is the result of mistake is not 

compensable under the Code. See German v. City of Phila., 683 A.2d 323 (Pa. 

Cmwlth. 1996).
10

We also considered the role of the entity responsible for the damages. 

When the destruction was caused by an entity other than that clothed with eminent 

domain power, like a contractor or neighbor, we were more likely to hold the 

damage did not result from the exercise of eminent domain. Id.; see, e.g., Deets 

(damage caused by contractor in installing sewer outside of right-of-way lies in 

trespass, not eminent domain). 

 Applying these factors to the allegations here, the acts are not in the 

nature of eminent domain. First, the nature of the act alleged here is not the 

occupation of property or impairment of access so as to constitute a de facto

taking. Cf. Elser. Here, the acts complained of involve incidental damage to the 

Property, including fences, a gate, curbing, and exterior damage to a building. 

Second, the acts complained of do not reflect intention. Fulmer. Third, to the 

extent Landowner alleges causation, the entity that performed the complained of 

acts is a third party not clothed with eminent domain power. Deets. Lastly, 

Landowner does not support its argument by analyzing applicable legal authority 

to show the acts sound in eminent domain. 

Because the nature of the act is unintended damage allegedly caused 

by an entity that may not be clothed with the power of eminent domain, we agree 

with the trial court’s determination that the acts do not sound in eminent domain.

2. Type of Damages

In determining whether damages are compensable in eminent domain 

or trespass, this Court also considers the degree of damages. For instance, we 
11

consider whether the damage rises to the level of a de facto taking of property. 

Poole; Fulmer. We also assess whether the damage is of a permanent nature and 

whether the damage could have been prevented by due care. Fulmer; Dep’t of 

Transp. v. Castillo, 321 A.2d 394 (Pa. Cmwlth. 1974).

Damages recoverable in an eminent domain proceeding are set forth 

in Chapter 7 of the Code. Section 702(a) of the Code describes “just compensation” 

as: “the difference between the fair market value of the condemnee’s entire 

property interest immediately before the condemnation and as unaffected by the

condemnation and the fair market value of the property interest remaining 

immediately after the condemnation and as affected by the condemnation.” 26 Pa. 

C.S. §702(a). 

The Code also provides for “consequential damages” in Section 714. 

Construing identical language under the former code provision relating to 

consequential damages,3this Court held recovery of such damages is permitted “as 

a result of only three causes: (1) change of grade of a road or highway; (2) 

permanent interference with access to a road or highway; and[,] (3) injury to 

surface support.” Daw v. Dep’t of Transp., 768 A.2d at 1210.

The damages Landowner describes are not compensable under either 

Section 702 or Section 714. Indeed, Landowner does not cite any provisions of the 

Code to support recovery of this type of damages in an eminent domain 

 

3 Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. §1-612, repealed by

Section 5 of the Act of May 4, 2006, P.L. 112.
12

proceeding. In fact, Landowner contends the damages it seeks fall outside the 

definition of just compensation, and so are not included in the Stipulation. 

Nonetheless, Landowner claims the damages are recoverable in eminent domain as 

an “immediate and necessary consequence” of the taking. Gold, 390 A.2d at 1376.

By its terms, the damages must be of the sort that cannot be avoided 

by the exercise of due care. Construction projects do not, by necessity, lead to 

damaged fences, gates, curbing and walls. That such damage may be a 

consequence of construction does not mean the damages were necessary and 

unavoidable to permit their recovery under the Code. Enon. 

Here, the damages Landowner describes do not constitute another 

taking beyond the Easement or cause substantial deprivation of the use of the 

Property. Thus, the damages are not permanent. Rather, the damages here are

reparable and may be itemized as specific damages. Poole (specific damages to 

property as a consequence of alleged negligence are recoverable in trespass).

Significantly, Landowner refers to these damages as restoration 

damages. Appellant’s Am. Br. at 20-21. Yet, the Code does not impose a duty of 

restoration on DOT. Nevertheless, Landowner claims DOT has a duty to return the 

Property to its pre-taking condition. The only authority Landowner cites in this 

regard is DOT’s self-imposed Right-of-Way manual4and an unreported federal 

district court case applying federal takings law.

 

4

It is not clear that the trial court considered this manual as it is not part of the certified 

record. 
13

Landowner’s reliance on Tennessee Gas Pipeline v. Permanent 

Easement for 1.7320 Acres, Civ. Action No. 3:CV-11-028 (M.D. Pa. 2014), 2014 

WL 690700 (unreported), to support recovery under the Code is misplaced. As in 

this case, the state of Tennessee condemned property for a temporary construction 

easement. However, that is where the similarities end. 

Tennessee Pipeline involved a taking under the Natural Gas Act, 15 

U.S.C. §§717-717z. There, the taking destroyed a number of full-grown trees. 

The district court explained the destruction of trees was “tantamount to a taking for 

which [the landowner] is entitled to compensation.” Id. at *12, slip op. at 21. The 

district court reasoned the just compensation award should include damages 

corresponding to the cost of restoring the temporary easement to its pre-taking 

condition. As a result, the court held the landowner was entitled to compensation 

for the destruction and damage to the trees on its property. 

Tennessee Gas Pipeline is distinguishable from the case before us. 

First, procedurally, the district court was in the process of awarding just 

compensation for the taking. Here, the parties agreed to the amount of just 

compensation and discontinued the case based on that agreement. Thus, the trial 

court in this case did not determine damages, which is a factual question; rather, it 

only determined the legal question of whether such damages were recoverable 

under the Code. Second, the district court applied different legal standards.

Although it had the option to apply state or federal takings law, the district court 

specifically rejected the application of Pennsylvania eminent domain law to 

determine compensation. In addition, the district court found the action for which 
14

the landowner sought damages was “tantamount” to a taking, id. at *12, slip op. at 

21, as the loss of trees devalued the property. Here, the damages Landowner seeks 

are in the nature of the cost of repairs to fences, gates, curbing and the like.

Landowner does not allege the type of damages compensable under 

the Code, and, based on our case law, the damages are not permanent or 

unavoidable. Accordingly, we uphold the trial court’s determination that the Code 

does not provide a means for their recovery.5

B. Discontinuance

In addition, DOT argues recovery under the Code is barred by the 

Stipulation. Although we need not reach this issue based on our disposition in 

DOT’s favor, we address it for the sake of completeness.

At the outset, we note the Code provides no mechanism to reopen a 

settled and discontinued case. Thus, the jurisdiction of the trial court to act on a 

petition to reopen in these circumstances is unclear. 

Additionally, we discern no grounds to vacate a settlement and 

rescind a praecipe to discontinue when there is no indication that release was 

induced by fraud, mistake or imposition. See Rothman v. Fillette, 469 A.2d 543 

(Pa. 1983) (dismissing petition to strike order to discontinue action because 

principal bears risk of agent’s actions; agent’s settlement not voided by principal’s 

 

5 We do not opine on the merit of Landowner’s trespass action. Further, we decline to 

address DOT’s assertion that, to the extent damages are recoverable, Contractor is responsible.
15

alleged ignorance); Murdoch v. Murdoch, 210 A.2d 490 (Pa. 1965) (rejecting 

petition to set aside discontinuance based on alleged nondisclosure of information); 

Hopewell v. Hendrie, 562 A.2d 899 (Pa. Super. 1989) (discontinuance may be 

stricken when mistakenly filed without party’s knowledge). Further, a party 

seeking to set aside a settled and discontinued action bears the burden of proving 

inducement by clear and convincing evidence. Murdoch.

Here, Landowner received the agreed upon compensation. 

Landowner does not allege mistake, or fraudulent inducement or lack of authority 

to enter the Stipulation. Therefore, Landowner states no legal basis for reopening 

the discontinued eminent domain action.

III. Conclusion

For the foregoing reasons, we affirm the trial court’s order.

 

ROBERT SIMPSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Condemnation by the :

Commonwealth of Pennsylvania, :

Department of Transportation, of :

Right-of-Way for State Route 1032, :

Section B02, in the Borough of :

Rochester: :

:

Cronimet Corporation : No. 1358 C.D. 2015

:

v. :

:

Commonwealth of Pennsylvania, :

Department of Transportation :

:

Appeal of: Cronimet Corporation :

O R D E R

AND NOW, this 5

th day of May, 2016, the order of the Court of 

Common Pleas of Beaver County is hereby AFFIRMED. 

Cronimet Corporation’s Application for Relief to Strike Contents of 

Brief of Appellee, the Commonwealth of Pennsylvania, Department of 

Transportation, is DENIED.

 

ROBERT SIMPSON, Judge