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Harrington v. Commonwealth, Department of Transportation

Landowner suffered compensable taking where totality of DOT's actions in re-topping road and paving shoulder resulted in change of grade and permanent interference that caused flooding and other damage to property.

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Argued: December 4, 2001

The Department of Transportation (DOT) appeals from the March 24, 2000 order of the Court of Common Pleas of Chester County (trial court) that overruled DOT’s preliminary objections to Elizabeth Harrington’s (Harrington’s) petition for appointment of a board of viewers for a de facto taking under Section 502(e) of the Eminent Domain Code (Code).*fn2 In this case, we revisit the issue of what constitutes a change of grade sufficient to allow an action for a de facto taking under Section 612 of the Code,*fn3 taking into consideration the seminal case on this issue, Daw v. Department of Transportation, 768 A.2d 1207 (Pa. Cmwlth. 2001). We affirm.

On June 10, 1960, Harrington and her husband purchased property located at 894 Horseshoe Pike, U.S. Route 322, East Brandywine Township, Chester County. Over the years, DOT has executed various contracts for work on Route 322, abutting and extending from the west property line to the east property line of Harrington’s property. The project at issue is DOT’s resurfacing of Route 322 between March and August of 1998.

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