IN THE COMMONWEALTH COURT OF PENNSYLVANIA 

Chernomusa N-Jie : 

 : 

 v. : No. 719 C.D. 2022 

 : Argued: May 8, 2023 

Commonwealth of Pennsylvania, : 

Department of Transportation, : 

 Appellant : 

BEFORE: HONORABLE ANNE E. COVEY Judge 

 HONORABLE ELLEN CEISLER, Judge 

 HONORABLE MARY HANNAH LEAVITT, Senior Judge 

OPINION 

BY SENIOR JUDGE LEAVITT FILED: August 7, 2023 

The Commonwealth of Pennsylvania, Department of Transportation 

(PennDOT or Department) appeals an order of the Court of Common Pleas of 

Allegheny County (trial court) that overruled its preliminary objections to the 

petition of Chernomusa N-Jie (Landowner) for the appointment of a board of 

viewers. Landowner’s petition asserted that PennDOT’s removal of his pedestrian 

bridge, which was the only means of access to his property, effected a de facto

condemnation. We affirm the trial court. 

Background 

In 2012, Landowner purchased property at 320 Lime Hollow Road, or 

State Route 2064, in the Township of Penn Hills (Property). The Property is 

separated from Lime Hollow Road by a 7-foot-deep streambed. The sole means of 

access to the Property was from Lime Hollow Road by a pedestrian bridge over the 

streambed adjacent to the road. There was a break in the guardrail on Lime Hollow 

Road to permit access to the pedestrian bridge. 
2 

In July of 2019, storms caused landslides, damaging the embankments 

along Lime Hollow Road. PennDOT undertook repair work, which initially did not 

involve the embankment adjacent to the Property. In early 2020, when the work 

began, PennDOT discovered that a retaining wall along Lime Hollow Road required 

replacement. This included that part of the wall supporting the pedestrian bridge to 

Landowner’s Property. 

On May 21, 2020, PennDOT sent a letter to the record owner of the 

Property, which stated: 

[Y]our pedestrian bridge is encroaching upon the Department’s 

right-of-way on State Route 2064 (320 Lime Hollow Road) in 

the Municipality of Penn Hills, Allegheny County. 

This unsafe pedestrian bridge is interfering with planned repairs 

to Lime Hollow Road and has been constructed on a Department 

owned wall that is currently failing and whose repair is part of 

the project. Additionally, as part of the Department of 

Transportation’s responsibility for the safety of the motoring 

public, the Department must ensure that the Right-of-Way Areas 

of the State’s Roadways remain free of objects which would 

present potential safety hazards. 

Please see the attached plan and photos. 

We are requesting that you immediately remove this 

encroachment from the Department Right-of-Way, so that it will 

not interfere with the current highway project, highway safety, 

and that you can retain possession of the materials involved. If 

the pedestrian bridge is not removed in 14 calendar days from 

the receipt of this letter, the Department’s contractor will remove 

it and place the materials on your Property. 

To give you a better understanding of the problems related to 

encroachments, we have enclosed a brochure entitled, “Right-ofWay Encroachments and Outdoor Advertising Sign Control.” 

Should you have any questions concerning this notice, please 

contact District Property Manager. . . . 
3 

Reproduced Record at 389a (R.R.____) (emphasis added). Shortly after expiration 

of the 14-day deadline, PennDOT’s contractor removed the bridge, cut it into pieces 

and hauled the materials away. It then installed a new guardrail along Lime Hollow 

Road, where the entrance to the pedestrian bridge had been located. 

On July 30, 2021, Landowner filed a petition for appointment of a board 

of viewers pursuant to Section 502(c) of the Eminent Domain Code,1 26 Pa. C.S. 

§502(c), alleging that PennDOT’s removal of the pedestrian bridge “denied the 

beneficial use and enjoyment of his property” and, thus, constituted a de facto taking 

of the Property. R.R. 5a-6a. 

In response, PennDOT filed preliminary objections pursuant to Section 

504(d) of the Eminent Domain Code, 26 Pa. C.S. §504(d). PennDOT asserted that 

the pedestrian bridge was an unpermitted encroachment upon the highway right-ofway, which had to be removed in order to repair the road’s retaining wall. PennDOT 

1

 Section 502(c) provides: 

(c) Condemnation where no declaration of taking has been filed.— 

(1) An owner of a property interest who asserts that the owner’s 

property interest has been condemned without the filing of a 

declaration of taking may file a petition for the appointment of 

viewers substantially in the form provided for in subsection (a) 

setting forth the factual basis of the petition. 

(2) The court shall determine whether a condemnation has occurred, 

and, if the court determines that a condemnation has occurred, the 

court shall determine the condemnation date and the extent and 

nature of any property interest condemned. 

(3) The court shall enter an order specifying any property interest 

which has been condemned and the date of the condemnation. 

(4) A copy of the order and any modification shall be filed by the 

condemnor in the office of the recorder of deeds of the county in 

which the property is located and shall be indexed in the deed 

indices showing the condemnee as grantor and the condemnor as 

grantee. 

26 Pa. C.S. §502(c). 
4 

alleged that the unpermitted bridge also “encroaches on an adjacent property 

belonging to Susan Lynn Kelley,” whose home is located on the opposite side of 

Lime Hollow Road. Kelley informed PennDOT that “she did not own, construct, 

permit, or otherwise utilize the subject pedestrian bridge.” R.R. 13a. Finally, 

PennDOT asserted that Landowner may apply for a highway occupancy permit, 

which “will allow him to construct a bridge and utilize a portion of the highway 

right-of-way to access his property.” R.R. 15a. 

In his deposition, Landowner testified that he is an auto mechanic and 

sells auto parts. He purchased the Property “with the bridge” in 2012 for $8,000 and 

uses it as storage for his auto business. Notes of Testimony (N.T.), 2/25/2022, at 42; 

R.R. 97a. When he needs to access his Property, he parks across the street, with the 

permission of Kelley. 

Landowner testified that he learned of PennDOT’s May 21, 2020, letter 

from the record owner of the Property, who was still the prior owner because 

Landowner did not record the Property deed until July of 2020. Landowner 

explained that it was impossible to remove the bridge in 14 days. Nevertheless, 

Landowner believed at the time that he could reinstall the bridge afterwards if the 

bridge materials were placed on the Property, as stated in PennDOT’s letter. N.T., 

2/25/2022, at 16; R.R. 71a. However, the contractors cut the bridge into pieces and 

hauled them away, terminating his access to the Property, where he keeps his tools 

and auto parts. Landowner testified that to access the Property, he has to use a ladder 

to climb in and out of the streambed at times when the water level is low. His 

neighbors’ bridges across the streambed have not been removed despite PennDOT’s 

repair work on Lime Hollow Road. 
5 

PennDOT’s assistant construction engineer, Steven Sneddon, who 

oversaw the repair project on Lime Hollow Road, testified by deposition. He 

explained that the retaining wall below Landowner’s pedestrian bridge was 

“significantly deteriorated” and could not be safely replaced without removing the 

bridge. N.T., 2/14/2022, at 21; R.R. 272a. Further, removing the bridge in one piece 

would have been “very difficult and risky” given the “poor condition” of the bridge 

and the lack of information on the age and construction of the bridge. N.T., 

2/14/2022, at 42-43; R.R. 293a-94a. Without knowing how the bridge was 

connected to the existing retaining wall, PennDOT could not support the bridge 

temporarily. 

PennDOT’s right-of-way administrator, Jeffrey Powell, testified by 

deposition that he researched the historic right-of-way for Lime Hollow Road. The 

Commonwealth acquired the road from Penn Hills Township sometime after the 

enactment of the Act of June 22, 1931, P.L. 594, No. 203,2 which authorized the 

acquisition. Powell testified that the bridge was located on three properties: a portion 

sat within PennDOT’s right-of-way; a portion sat within Landowner’s Property; and 

a portion was located on property owned by Kelley. N.T., 2/14/2022, at 23-24; R.R. 

222a-23a. 

PennDOT’s highway occupancy permit manager, Michael Simmons, 

testified by deposition that he was unable to locate any permit allowing Landowner 

or previous owners of the Property access to the state highway. He explained that 

Landowner was eligible to apply for a highway occupancy permit for a new 

pedestrian bridge to the Property from Lime Hollow Road. 

2

 Act of June 22, 1931, is referred to as the Township State Highway Law. 
6 

Trial Court Decision 

By order dated June 27, 2022, the trial court overruled PennDOT’s 

preliminary objections and granted Landowner’s petition for appointment of a board 

of viewers. The trial court found that Landowner’s “interest in the pedestrian bridge 

from Lime Hollow Road or State Route 2064 to 320 Lime Hollow Road and the 

supporting pillars have been condemned,” and the condemnation “occurred during 

the summer of 2020.”3 Trial Court Order, 6/27/2022. PennDOT appealed to this 

Court. 

In its PA. R.A.P. 1925(a) opinion, the trial court explained that 

PennDOT has police powers over structures located within its right-of-way; 

however, in this case, PennDOT did not reasonably exercise its police powers. It 

was “patently unreasonable” for PennDOT to allow only 14 days for the bridge’s 

removal, in light of the fact that 10 months had already passed since the damage to 

the right-of-way. Trial Court Rule 1925(a) Op. at 4. PennDOT also acted 

unreasonably by not removing the bridge in one piece and placing it on Landowner’s 

property. 

The trial court reasoned that the pedestrian bridge may have been 

authorized by Landowner’s right-of-access to a well located on Kelley’s property or 

as part of a prescriptive easement to prevent a landlocking of the Property. 

PennDOT knew the bridge was the only access to the Property, and it “clearly had 

been used more than long enough to constitute part of the prescriptive easement.” 

Trial Court Rule 1925(a) Op. at 5. By removing the bridge, PennDOT landlocked 

Landowner. This unreasonable exercise of PennDOT’s police powers constituted a 

3

 Landowner’s petition asserted that the Property was condemned; however, the trial court found 

that only the bridge was condemned. Landowner did not appeal the trial court’s decision on the 

scope of the de facto taking. 
7 

de facto taking. Id. (citing McElwee v. Southeastern Pennsylvania Transportation 

Authority, 948 A.2d 762 (Pa. 2008)). 

Finally, the trial court explained that its order complied with Section 

502(c) of the Eminent Domain Code, 26 Pa. C.S. §502(c), because the order 

specified the date of the condemnation as “the summer of 2020” as well as the nature 

and extent of the property interest that was condemned, i.e., the pedestrian bridge. 

Trial Court Rule 1925(a) Op. at 6. The trial court concluded that these findings were 

sufficient to allow a board of viewers to make an appropriate award of compensation. 

Appeal 

On appeal,4 PennDOT raises two issues for our review. First, 

PennDOT argues that the trial court erred in concluding that PennDOT’s removal of 

an unpermitted encroachment on its right-of-way constituted a de facto

condemnation of the subject property. Second, in the alternative, PennDOT argues 

that the trial court erred by not determining the precise date of the condemnation and 

the extent and nature of the property interest condemned, which are required by 

Section 502(c) of the Eminent Domain Code. 

I. De Facto Taking 

In its first issue, PennDOT argues that the trial court erred in concluding 

that the removal of the pedestrian bridge from its right-of-way constituted a de facto

taking. Section 420 of the State Highway Law5 authorizes PennDOT to issue 

4

 This Court’s standard of review of a trial court’s ruling on preliminary objections to a petition 

for appointment of a board of viewers is to determine whether there is substantial evidence in the 

record to support the necessary findings and whether the trial court committed an error of law. See 

Ristvey v. Department of Transportation, 52 A.3d 425, 429 n.3 (Pa. Cmwlth. 2012). 

5

 Act of June 1, 1945, P.L. 1242, as amended, 36 P.S. §670-420. It provides, in pertinent part, that 

“[t]he secretary may issue permits for the opening of streets and driveways onto State highways 

and for the opening of the surface and occupancy of State highways on terms and conditions 

established in department regulations,” and “[n]o person, municipality or municipality authority 
8 

permits to regulate driveways that connect to state highways. While the age of the 

pedestrian bridge is unknown, PennDOT’s authority to regulate encroachment on 

state highways may be applied retroactively. PennDOT Brief at 19 (citing 

Department of Transportation v. Longo, 510 A.2d 832 (Pa. Cmwlth. 1986)). 

PennDOT may also require any person to remove an encroachment “from the legal 

limits of the right-of-way and to restore the right-of-way to its former condition.” 

67 Pa. Code §441.6(4)(ii). PennDOT asserts that its removal of the pedestrian bridge 

was reasonable because emergency repair work was needed on the retaining wall 

supporting the bridge. Notwithstanding its removal of the pedestrian bridge, 

PennDOT asserts it has not interfered with Landowner’s access to the Property 

because he is free to apply for a highway occupancy permit and construct a new 

bridge. 

To support its position that there has not been a condemnation, 

PennDOT directs the Court to In re Condemnation by Commonwealth of 

Pennsylvania Department of Transportation of Two Billboards Located on T.R. 209, 

452 A.2d 83 (Pa. Cmwlth. 1982) (Condemnation of Two Billboards). In that case, 

this Court held that PennDOT’s removal of unpermitted billboards did not constitute 

the exercise of its eminent domain power but, rather, its police powers. At issue 

were eight billboards that required a permit under Section 7 of the Outdoor 

Advertising Control Act of 1971 (Outdoor Advertising Act).6 The owner obtained 

permits for four of the eight billboards. PennDOT initiated an enforcement action 

against the four unpermitted billboards, which it then removed under authority of 

shall open a driveway onto a State highway or open the surface of or occupy a State highway 

without a permit.” 36 P.S. §670-420(b). 

6

 Act of December 15, 1971, P.L. 596, as amended, 36 P.S. §2718.107. 
9 

Section 10 of the Outdoor Advertising Act.7 This Court held that because 

PennDOT’s action was undertaken to enforce the Outdoor Advertising Act, it was 

not a condemnation subject to the Eminent Domain Code. 

PennDOT acknowledges that there are limits to the exercise of its police 

power. In Ristvey v. Department of Transportation, 52 A.3d 425 (Pa. Cmwlth. 

2012), PennDOT issued a highway occupancy permit for a left turn, stand-by lane 

on a state highway to enter a development. An adjacent landowner petitioned for 

appointment of a board of viewers, alleging a de facto taking by PennDOT because 

the change of traffic pattern on the highway rendered his property worthless. This 

Court held that PennDOT’s issuance of the highway occupancy permit constituted a 

reasonable exercise of its police powers, necessary to avoid a potentially hazardous 

highway condition, and not a condemnation. Further, the reconfiguration of the road 

did not unreasonably interfere with the adjacent owner’s access to and from his 

property. 

7

 It stated as follows: 

In addition to the penalties prescribed in this act, the secretary may institute any 

appropriate action or proceeding after thirty days’ written notice of a violation to 

the person or persons maintaining or allowing to be maintained such device, to 

prevent, restrain, correct or abate a violation or to cause the removal of any 

advertising device erected or maintained in violation of the provisions of this act, 

or the secretary may have any such device corrected or removed by his employes. 

In the event of such removal, the person or persons responsible for the erection or 

maintenance of such device and the person or persons allowing such device to be 

maintained shall be liable to the department for the cost of removal or correction of 

such device. Neither the secretary nor any other employe acting at his direction 

shall be liable in any criminal or civil action for damages for any action authorized 

by this act. 

36 P.S. §2718.110 (emphasis added). Section 10 was amended by the Act of July 11, 2022, P.L. 

1581, to exempt certain billboards. However, the salient terms cited above remain in Section 10 

of the Outdoor Advertising Act as amended in 2022. 
10 

Landowner responds that PennDOT’s exercise of its police powers was 

unreasonable. PennDOT demolished the bridge and then installed a new guardrail 

in the location of the bridge entrance, leaving Landowner without access to his 

Property. Landowner argues that in the exercise of its police powers, PennDOT is 

required to choose the minimum course, but it did not do so in Landowner’s case. 

Further, Landowner’s unpermitted encroachment was no different than that of his 

neighbors, but their bridges have not been removed. PennDOT told Landowner that 

the materials of the bridge would be placed on his property, but that did not happen. 

PennDOT’s destruction of the bridge violated Landowner’s due process rights. 

To prove a de facto taking, the property owner must establish 

“exceptional circumstances that substantially deprived him of the beneficial use and 

enjoyment of his property.” York Road Realty Co., L.P. v. Cheltenham Township, 

136 A.3d 1047, 1050 (Pa. Cmwlth. 2016) (citing In re Borough of Blakely, 25 A.3d 

458, 463-64 (Pa. Cmwlth. 2011)). This deprivation “must be caused by the actions 

of an entity with eminent domain powers,” and the damages sustained must be “an 

immediate, necessary and unavoidable consequence of the exercise on the entity’s 

eminent domain powers.” York Road Realty, 136 A.3d at 1050. A de facto taking 

“is not a physical seizure of property; rather, it is an interference with one of the 

rights of ownership that substantially deprives the owner of the beneficial use of his 

property. The beneficial use of the property includes not only its present use, but all 

potential uses, including its highest and best use.” Id. at 1050-51. 

There is an important difference between the exercise of police powers 

and the exercise of eminent domain powers. We have explained that difference as 

follows: 

Police power should not be confused with that of eminent 

domain. Police power controls the use of property by the owner,
11 

for the public good, its use otherwise being harmful, while 

eminent domain and taxation take property for public use. Under 

eminent domain, compensation is given for property taken, 

injured or destroyed, while under the police power no payment is 

made for a diminution in use, even though it amounts to an actual 

taking or destruction of property. . . . 

No matter how seemingly complete our scheme of private 

ownership may be under our system of government, all property 

is held in subordination of the right of its reasonable regulation 

by the government clearly necessary to preserve the health, 

safety, or morals of the people. Obedience to such regulation is 

not taking property without due process; that clause does not 

qualify the police power.

Condemnation of Two Billboards, 452 A.2d at 85 (emphasis added). Nevertheless, 

“the Commonwealth may not effect what amounts to a taking under the guise of its 

police power without paying compensation.” Ristvey, 52 A.3d at 432. “A person’s 

right to private ownership of his property is only subject and subordinate to 

reasonable regulation by the government for the preservation of public health, 

safety, and morals.” Id. (emphasis in original). PennDOT may not “unduly 

intermeddle” with property rights of property owners. Id. “If it does, then an 

exercise of its police powers may, in certain circumstances, constitute a compensable 

taking.”8 Id. 

 Here, the trial court held that PennDOT’s removal of the pedestrian 

bridge to access the retaining wall thereunder constituted an exercise of its police 

powers. The question, then, was whether PennDOT acted unreasonably, thereby 

effecting a compensable taking. Ristvey, 52 A.3d at 432. 

8

 Property owners alleging a de facto taking “bear a heavy burden of proof . . . . Further, there is 

no bright line test to determine when a government action results in a de facto taking; each case 

turns on its own facts.” York Road Realty, 136 A.3d at 1051. 
12 

The trial court relied upon the Supreme Court’s decision in McElwee, 

948 A.2d 762. There, the Southeastern Pennsylvania Transportation Authority 

(SEPTA) performed construction work along Market Street in Philadelphia and, for 

three years, routinely blocked access to McElwee’s printing business, causing losses 

that led to its demise. McElwee asserted that SEPTA effected a de facto

condemnation of his printing business. The evidence showed that SEPTA’s 

construction work blocked the entrance to McElwee’s driveway, which the business 

needed for loading and unloading raw materials and finished products. 

The Supreme Court held that McElwee made a prima facie case that 

SEPTA had substantially deprived him of the beneficial use and enjoyment of the 

property. In doing so, the Supreme Court cited Truck Terminal Realty Co. v. 

Department of Transportation, 403 A.2d 986 (Pa. 1979), which established that 

temporary interference with road access falls under the noncompensable exercise of 

the police power necessary to effectuate public improvement, unless the alleged 

interference was accomplished in an arbitrary or unreasonable manner, or became 

unduly prolonged. McElwee, 948 A.2d at 778. The Supreme Court explained: 

Clearly, if the governmental entity arbitrarily obstructs access to 

the subject property in the sense that the interference is 

unnecessary and the project could have been completed just as 

conveniently without substantial harm to any property owner, the 

situation would come within the exception to the Truck Terminal

rule for arbitrary deprivations. . . . Presently, however, although 

Appellees adduced a significant amount of evidence concerning 

the inconvenience and disruption they suffered in their business 

pursuits, little in the record suggests that alternate means were 

available to SEPTA or that the driveway was blocked for

vindictive or otherwise arbitrary reasons. Still, it is relevant that, 

under the disjunctive formulation utilized in Truck Terminal, the 

exception may also be triggered where the work is done in a way 

that is “unreasonable,” or “unreasonably prolonged,” even if it 

is not arbitrary. Thus, for present purpose the issue distills to 
13 

whether the case adduced by Appellees demonstrates 

interference with access that was unreasonable under all of the 

circumstances. 

Although the concept of an unreasonable interference with 

access cannot be delineated with precision, . . . it seems evident 

that the longer the interference lasts, the lighter the burden the 

de facto condemnee must carry to establish unreasonableness[.] 

McElwee, 948 A.2d at 778-79 (emphasis added). 

 Here, PennDOT removed the pedestrian bridge in order to access and 

replace the damaged retaining wall along Lime Hollow Road. As in McElwee, the 

record here does not establish that alternate means were available to PennDOT to do 

this work. PennDOT’s inference with Landowner’s access to the Property, however, 

was unreasonable and prolonged. The bridge was Landowner’s only access to the 

Property; he now has to use a ladder to climb in and out of the streambed to access 

the Property. Even that access is unreasonably blocked by the new guardrail. 

Landowner is landlocked until a new bridge is built. 

 PennDOT argues that the removal of any encroachment within its rightof-way constitutes a reasonable exercise of its police power, and nothing precludes 

Landowner from applying for a highway occupancy permit and constructing a new 

bridge. However, as observed by Landowner, PennDOT’s May 21, 2020, letter to 

the owner of record of the Property did not mention a lack of the highway occupancy 

permit for the pedestrian bridge or any violation of Section 420 of the State Highway 

Law. The letter stated that “a Department[-]owned wall” underneath the bridge “is 

currently failing” and asked the owner to remove the “unsafe pedestrian bridge” so 

that “it will not interfere with the current highway project.” R.R. 389a. The letter 

further advised that “[i]f the pedestrian bridge is not removed in 14 calendar days 

from the receipt of this letter, the Department’s contractor will remove it and place 
14 

the materials on your Property.” Id. (emphasis added). Landowner testified that he 

intended to put the bridge back in place, using those materials. N.T. 15-16; R.R. 

70a-71a. 

 PennDOT further argues that its regulation at 67 Pa. Code §441.6(4)(ii) 

authorized it to require Landowner to remove his structures or property “from the 

legal limits of the right-of-way and to restore the right-of-way to its former 

condition.” PennDOT Brief at 20. However, this regulation applies only where a 

highway occupancy permit has been issued. Section 441.6, titled “General 

Conditions,” states, in relevant part, as follows: 

The following conditions shall apply to permits issued under the 

provisions of this chapter: 

* * * * 

(4) Permittee responsibilities. Permittee responsibilities shall be 

as follows: 

(ii) In the event of failure or neglect by the permittee 

to perform and comply with the permit or the 

provisions of this chapter, the Department may 

immediately revoke and annul the permit and order 

and direct the permittee to remove any or all 

structures, equipment, or property belonging to the 

permittee or its contractors from the legal limits of 

the right-of-way and to restore the right-of-way to 

its former condition. In the event the Department 

determines that such structures, equipment, or 

property pose a threat to the public safety and the 

permittee fails to remove the same after notice from 

the Department to do so, the Secretary or his 

attorneys, or any attorney of any court of record 

shall be authorized to appear for the permittee, and 

to enter an amicable action of ejectment and confess 

judgment against the permittee; and the attorney 

shall be authorized to issue forthwith a writ of 
15 

possession without leave of court, all at the cost of 

the permittee. 

67 Pa. Code §441.6 (emphasis added). Notably, the regulation requires process, 

which was not afforded to Landowner. 

As PennDOT acknowledges, neither Landowner nor the previous 

owner of the Property had been issued a highway occupancy permit for the 

pedestrian bridge. Consequently, the regulation at 67 Pa. Code §441.6 has no 

application to this circumstance.9 

Section 420 of the State Highway Law provides that “no person, 

municipality or municipality authority shall open a driveway onto a State highway 

or open the surface of or occupy a State highway without a permit.” 36 P.S. §670-

420(b)(2). It further states that 

[a]ny person violating any rule or regulation promulgated under 

this section, or who shall, by any method or device, or in any 

manner, wilfully or maliciously destroy, injure, or damage any 

such highway in this Commonwealth, shall, upon summary 

conviction thereof, be sentenced to pay a fine of not less than one 

hundred dollars ($100.00) for each offense, together with the 

costs of prosecution and all necessary restoration, which shall 

be recovered, as in similar cases, upon complaint of any person 

9

 Likewise, the regulation at 67 Pa. Code §441.10, titled “Penalties and enforcement,” did not 

authorize PennDOT to remove the pedestrian bridge. It states, in pertinent part: 

(a) General rule. A violation of this chapter or the permit requirements shall 

constitute grounds for imposition of any or all of the following penalties: 

* * * * 

(4) The Department may block driveways or sever, remove or block 

drainage facilities constructed without a permit or in violation of this 

chapter. 

67 Pa. Code §441.10(a)(4) (emphasis added). The pedestrian bridge is not a “driveway” as defined 

in the regulations. See 67 Pa. Code §441.1 (driveway is “[e]very entrance or exit used by vehicular 

traffic to or from properties abutting a highway. The term includes proposed streets, lanes, alleys, 

courts, and ways”). PennDOT does not argue that the pedestrian bridge is a “drainage facility.” 
16 

before a magistrate or justice of the peace, and the fine or fines 

so recovered shall be paid into the Motor License Fund. 

36 P.S. §670-420(e) (emphasis added). The procedure prescribed in Section 420(e) 

was not followed in the instant case. Instead, PennDOT simply removed the 

pedestrian bridge and, in doing so, landlocked Landowner. 

Condemnation of Two Billboards, 452 A.2d 83, and Ristvey, 52 A.3d 

425, do not support PennDOT’s preliminary objections. 

In Condemnation of Two Billboards, PennDOT removed four 

unpermitted billboards that had violated Section 7 of the Outdoor Advertising Act, 

36 P.S. §2718.107. Section 10(a) of the Outdoor Advertising Act authorized 

PennDOT to institute an “appropriate action or proceeding” after written notice of a 

violation “to prevent, restrain, correct or abate a violation or to cause the removal of 

any advertising device erected or maintained in violation of the provisions of this 

act[.]” 36 P.S. §2718.110(a). This Court held that PennDOT did not “take” the 

billboards for the benefit of the public; rather, it enforced the Outdoor Advertising 

Act. Here, by contrast, PennDOT destroyed the pedestrian bridge so it could replace 

the retaining wall within its right-of-way, not to enforce the State Highway Law. 

Even so, PennDOT did not follow the procedures for enforcement of the State 

Highway Law. See 36 P.S. §670-420(e). 

In Ristvey, this Court held that a de facto taking had not occurred 

because the reconfiguration of the road did not unreasonably interfere with the 

owner’s access to his property. Here, by contrast, PennDOT has directly interfered 

with Landowner’s access to his property. PennDOT has left Landowner landlocked 

by removing his only access to the Property. 
17 

The trial court held that in its removal of the pedestrian bridge, the only 

access to Landowner’s Property, PennDOT unreasonably exercised its police 

powers, thereby effecting a de facto taking. We discern no error in this holding. 

II. Date of the condemnation and extent and nature of the property 

condemned 

PennDOT argues, in the alternative, that the matter should be remanded 

to the trial court to determine the precise date of the condemnation and the precise 

nature of the property interest condemned under Section 502(c) of the Eminent 

Domain Code, 26 Pa. C.S. §502(c). These findings must be reduced to a court order, 

which the condemnor must file in the office of the recorder of deeds showing the 

condemnee as the grantor and the condemnor as the grantee. Without the trial court’s 

compliance with Section 502(c), PennDOT argues that the appointed board of 

viewers cannot assess damages. Landowner responds that the trial court’s order is 

clear: it identified the property taken as the bridge and the support pillars, and the 

condemnation occurred in the summer of 2020. 

Section 502(c)(1) of the Eminent Domain Code authorizes the “owner 

of a property interest who asserts that the owner’s property interest has been 

condemned without the filing of a declaration of taking[, to] file a petition for the 

appointment of viewers . . . setting forth the factual basis of the petition.”10 26 Pa. 

C.S. §502(c)(1). Section 504(d) of the Eminent Domain Code provides, in relevant 

part, as follows: 

10 The Eminent Domain Code “provides the exclusive method and practice governing eminent 

domain proceedings, including de facto takings, and [] preliminary objections are the exclusive 

method of raising objections to a petition for appointment of viewers alleging a de facto taking[.]” 

Gerg v. Township of Fox, 107 A.3d 849, 852 (Pa. Cmwlth. 2015) (emphasis in original) (citation 

omitted). 
18 

(1) Any objection to the appointment of viewers may be raised 

by preliminary objections filed within 30 days after receipt of 

notice of the appointment of viewers. 

(2) Objections to the form of the petition or the appointment or 

the qualifications of the viewers in any proceeding or to the legal 

sufficiency or factual basis of a petition filed under section 

502(c) (relating to petition for appointment of viewers) are 

waived unless included in preliminary objections. 

* * * * 

(5) If an issue of fact is raised, the court shall conduct an 

evidentiary hearing or order that evidence be taken by deposition 

or otherwise, but in no event shall evidence be taken by the 

viewers on this issue. 

26 Pa. C.S. §504(d) (emphasis added). 

 This Court has concluded that “preliminary objections in the context of 

proceedings under the [Eminent Domain] Code are distinct from preliminary 

objections in the context of a proceeding under the Pennsylvania Rules of Civil 

Procedure.” William Schenk & Sons v. Northampton, Bucks County Municipal 

Authority, 97 A.3d 820, 824 (Pa. Cmwlth. 2014). “In proceedings under the 

[Eminent Domain] Code, preliminary objections are intended as a procedure to 

resolve all legal and factual challenges to a declaration of taking before proceeding 

to the damages issue—i.e., hearing by an appointed board of viewers.” Id. Section 

502(c)(2) of the Eminent Domain Code further provides that “[t]he court shall 

determine whether a condemnation has occurred, and, if the court determines that a 

condemnation has occurred, the court shall determine the condemnation date and the 

extent and nature of any property interest condemned.” 26 Pa. C.S. §502(c)(2). 

“When the trial court renders findings prior to the appointment of a 

board of viewers, the findings are binding on that board, which will hear and decide 

the remaining damages issues.” In re De Facto Condemnation of Taking of Lands 
19 

of WBF Associates, L.P. ex rel. Lehigh–Northampton Airport Authority, 903 A.2d 

1192, 1208-09 (Pa. 2006). Nevertheless, the board of viewers has implicit authority 

to decide all relevant questions of law or fact necessary to an award of damages. 

Gardner v. Allegheny County, 142 A.2d 187, 192-93 (Pa. 1958). 

Here, Landowner’s petition alleged that PennDOT’s removal of the 

pedestrian bridge deprived him of “the beneficial use and enjoyment of his property” 

and, thus, constituted a de facto taking of the entire Property. R.R. 5a-6a. The extent 

and nature of the property interest condemned was an issue of fact to be litigated. In 

the end, the trial court found that Landowner’s “interest in the pedestrian bridge from 

Lime Hollow Road or State Route 2064 to 320 Lime Hollow Road and the 

supporting pillars have been condemned[.]” Trial Court Order, 6/27/2022. It did 

not conclude that the entire Property had been condemned. 

The trial court further found the condemnation “occurred during the 

summer of 2020.” Trial Court Order, 6/27/2022. While PennDOT stated in its 

preliminary objections that it “removed the unpermitted encroachment on July 20, 

2020,” R.R. 14a, the trial court found that the parties provided “no more precise 

date” on when the condemnation occurred, but they “likely can cure their error for 

the board of viewers proceedings.” Trial Court Rule 1925(a) Op. at 6. 

The trial court has made factual findings sufficient to allow the board 

of viewers to assess damages for the taking. In any case, the board of viewers can 

determine the exact date of the condemnation to the extent necessary to determine 

the damages award. The board of viewers has implicit authority to decide “all 

relevant questions of law or fact before it can competently award damages or assess 

[] benefits.” Gardner, 142 A.2d at 193. 
20 

Conclusion 

Based upon the foregoing, we hold that the trial court did not err. 

PennDOT unreasonably exercised its police powers in removing the pedestrian 

bridge, the only access to Landowner’s Property, which action constituted a de facto

taking. Further, the trial court made the findings needed in order for the board of 

viewers to determine damages. Accordingly, we affirm the order of the trial court. 

 ____________________________________________ 

 MARY HANNAH LEAVITT, President Judge Emerita 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA 

Chernomusa N-Jie : 

 : 

 v. : No. 719 C.D. 2022 

 : 

Commonwealth of Pennsylvania, : 

Department of Transportation, : 

 Appellant : 

ORDER 

 AND NOW, this 7th day of August, 2023, the order of the Court of 

Common Pleas of Allegheny County, dated June 27, 2022, in the above-captioned 

matter, is AFFIRMED. 

 ____________________________________________ 

 MARY HANNAH LEAVITT, President Judge Emerita