Is It Allowed to Determine Damages Without a Hearing to Determine Whether a Taking Has Occurred ?

In Millcreek Township v. N.E.A. Cross Company, 152 Pa. Commw. 576, 620 A.2d 558 (Pa. Cmwlth. 1993), the Court established that a case may not be sent to a board of viewers to determine damages until the Court of Common Pleas makes a determination that a taking has occurred. Preliminary objections are the exclusive method under the Code of raising legal and factual objections to a petition for appointment of viewers that alleges a de facto taking, and the petition may not be dismissed by the trial court without first conducting an evidentiary hearing to determine whether a de facto taking has occurred. Holmes Protection of Pittsburgh, Inc. v. Port Authority of Allegheny County, 90 Pa. Commw. 342, 495 A.2d 630 (Pa. Cmwlth. 1985), appeal denied, 519 Pa. 656, 546 A.2d 60 (1988).