James C. Sargent, Jr., left, and Katherine E. LaDow, right, of Lamb McErlane. Courtesy photos

Preliminary Objections: Challenging the Declaration of Taking

The condemnee has a limited ability to challenge the governmental taking of his property. Pennsylvania's Eminent Domain Code (the code), gives the condemnee the right to oppose a condemner's declaration by filing with the court of common pleas a legal document called "preliminary objections." Preliminary objections must be filed within 30 days after the date when the condemnee was served with notice of the condemnation. See generally, 26 Pa.C.S.A, Section 306.

The grounds for challenging a condemnation are limited to the following:

• The power or right of the condemnor to condemn the property;
• The sufficiency of the security posted;
• The form of the declaration of taking; or
• Any other procedures followed by the condemning authority.

Whether these issues apply depends upon the facts of the individual case and the nature of the governmental power involved. The code applies to all condemnations, and the form declaration of taking must be used by all condemning authorities. However, the procedures and effects may differ. For example, a political subdivision with the power to tax need not file a bond, whereas a municipal authority and public utility must file a bond to secure the condemnee's damages from the take. To exercise the power to condemn, a public utility must have a certificate of convenience from the Public Utility Commission (PUC). 66 Pa.C.S. Section 1104.