dissenting.
I respectfully dissent from the majority’s decision that Dennis Sluciak (Property Owner) is entitled to have his property permanently valued as landlocked as a result of the Department of Transportation’s (PennDOT) declaration of taking that legally, though not actually, inadvertently landlocked his property. When the initial declaration of taking was filed, Property Owner never filed preliminary objections to this declaration of taking challenging the scope of the take and, consequently, waived the issue of whether his property was landlocked. Even if Property Owner was not required to file the preliminary objections because PennDOT later cured the access problem, I would hold that Property Owner is not entitled to damages as if the property were landlocked forever when it is not.
In April 1938, Property Owner’s parents purchased a 60-acre parcel of land in Cecil Township, Washington County. The adjoining lot was owned by Mary Dagsher (Dagsher). Although approximately 800 feet of Property Owner’s parcel abutted Grudevich Road, Property Owner and his parents used a driveway that cut across a “sliver” of property owned by Dagsher, with her permission, to access this main road. If Dagsher ever withdrew her permission, Property Owner could have accessed his property by way of this frontage. At various times since 1938, Property Owner’s parents attempted to purchase the sliver from Dagsher without success. Moreover, Property Owner and his parents were solely responsible for the maintenance and repair of this sliver.
On April 21, 1993, PennDOT filed a declaration of taking acquiring 12.190 acres of Property Owner’s parcel, including the 800 feet of linear frontage that abutted Grude-vich Road. Property Owner did not file preliminary objections to this declaration of taking. In May 1993, he signed an estimated just compensation application receiving $145,0001 in just compensation for Penn-DOT’s condemnation of his property. In October 1993, Property Owner filed a Petition for Appointment of a Board of Viewers (Board) alleging that PennDOT had totally ■taken his property because he was landlocked as a result of PennDOT’s taking and had no legal access to Grudevich Road from his property, except over the sliver which he *625did not own.2 Although finding that Property Owner’s property did not abut Grudevich Road, the Board concluded that Property Owner had an irrevocable license or an easement by necessity over the sliver. It concluded that his property was not landlocked because he had continued use of the sliver to access Grudevich Road and awarded him damages in the amount of $145,000. Property Owner appealed to the trial court, but before a hearing was held, PennDOT condemned the sliver to ensure that Property Owner would have access to Grudevich Road. At the hearing on the condemnation of both pieces of property, the trial court found that Property Owner’s property was not landlocked, primarily relying on the fact that PennDOT had “cured the access issue” by condemning the sliver.
On appeal to this Court, the majority agrees with Property Owner that the trial court erred in relying on PennDOT’s subsequent condemnation of the sliver in determining that his property was not landlocked, but in doing so, dismisses PennDOT’s argument that Property Owner did not file preliminary objections3 to the first condemnation based on our holding in West Whiteland Associates v. Department of Transportation, 690 A.2d 1266 (Pa.Cmwlth.), petition for allowance of appeal denied, 550 Pa. 714, 705 A.2d 1313 (1997). The majority distinguishes that case from the facts presented here because, unlike the landowner in West White-land, Property Owner did not contest the description of the property plan, challenge the power of PennDOT to take his property, the security or any PennDOT procedure, and, therefore, was not precluded from raising any argument that his property was landlocked despite not filing preliminary objections. However, while the particular issue in West Whiteland was whether the landowner waived his right to contest the description of his condemned property, we stated the following as a general principle:
Preliminary objections under Section 406 of the Code1 are intended as a procedure to resolve expeditiously all legal and factual challenges to the declaration of taking before the parties move to the second distinct proceeding of qualifying damages. (Footnote and citation omitted).
Id. at 1268.
That being the case, after Property Owner was served with PennDOT’s declaration of taking, he was required to file the preliminary objections alleging that the scope of PennDOT’s take was improper and that the remaining portion of his property was also taken or the issue was waived. Department of Transportation v. Fackler, 100 Pa.Cmwlth. 546, 515 A.2d 102 (1986). In Department of Transportation v. Greenfield Township-Property Owners, 135 Pa.Cmwlth. 113, 582 A.2d 41 (1990), petition for allowance of appeal denied, 527 Pa. 669, 593 A.2d 844 (1991), PennDOT alleged that the landowners were precluded from raising a de facto taking when they had failed to file preliminary objections to the taking of their property. While we held that the landowners were not precluded from arguing that their property was landlocked, even though they had not filed preliminary objections to the take, we did so because they were not aware nor could they have reasonably become aware that their property was landlocked at the time the declaration of taking was filed. Unlike in Greenfield Township, Property Owner believed his property was landlocked at the time of the first taking and made that allegation when he petitioned for the appointment *626of the Board. Because Property Owner believed that his property was landlocked immediately after the first condemnation but failed to file preliminary objections to the taking, he was precluded from arguing that his property was landlocked.
Even assuming that Property Owner was not required to file preliminary objections to PennDOT’s declaration of taking, I would hold that Property Owner is not entitled to an after value of the property as if it were landlocked. To do so would allow him to recover damages based on the value of the property as if it is landlocked when the lack of access was cured as soon as PennDOT provided him with, admittedly, adequate access to Grudevich Road.
In arriving at its conclusion, the majority relies on our decision in Appeal of Philadelphia Elec. Co. (PECO), 135 Pa.Cmwlth. 100, 580 A.2d 424 (1990), petition for allowance of appeal denied, 528 Pa. 615, 596 A.2d 161 (1991). In that case, we held that the property owner’s damages for condemnation of a portion of its property by PennDOT was measured at the time of the taking and could not be cured with access to the property through a subsequent condemnation of an easement over another parcel, even though the subsequent condemnation was included in an overall improvement plan and was referenced in the declaration of taking of PECO’s property. The difference between this case and PECO is that in PECO, PennDOT realized that the property owner would not have access at the time of its taking, but in this case, PennDOT’s taking leaving the parcel landlocked was inadvertent.
Although I would reverse PECO because, even though compensation should normally be based on what is taken, that principle should not be so inflexible as to not take into consideration what is referenced in the declaration of taking, and I do not believe it necessary to do so because PECO is not controlling. In this case, PennDOT inadvertently denied access which I believe is a distinction that makes the landlocking here more akin to a temporary taking that occurs when the government “inadvertently” imposes a regulation or takes an action that results in the temporary loss of the use of the property. For example, if a PennDOT crew dumped a load of chip stone on a property, the property owner may have a cause of action for a temporary take for the time the stone was on the property, but could not claim a total take. See, e.g., Elser v. Commonwealth, Department of Transportation, 651 A.2d 567 (Pa.Cmwlth.1994), petition for allowance of appeal denied, 540 Pa. 650, 659 A.2d 988 (1995). Similarly, in a regulatory de facto taking, where property owner is claiming that the effect of the regulation is to deprive it of the use of its property, compensation is only required to be paid for a limited period until the regulation is struck down or the date when the government entity either rescinds or otherwise revokes or amends the regulation. Robert J. Hopper-ton, Standards of Judicial Review in Supreme Court Land Use Opinions: A Taxonomy, An Analytical Framework, and A Synthesis, 51 Wash. U.J. Urb. & Contemp. L. 163 (1997).
In this case, when PennDOT realized that as a result of its condemnation, the property had become landlocked, PennDOT cured its mistake by providing access. Because Penn-DOT cured the effect of its earlier condemnation, Property Owner is not entitled to just compensation for the value of his property without access to Grudevich Road when, in fact, he has access to Grudevich Road through the same route that he has actually used since he owned the property. What Property Owner may be entitled to, because he was temporally denied legal access, if not in reality, are damages for that period of time that the property was without legal access prior to PennDOT’s acquisition of access. Odhner v. Township of Woodward, 143 Pa.Cmwlth. 450, 599 A.2d 276, 279 (1991) (“[w]e recognize that a landowner, subject to a temporary taking, can be entitled to compensation for the deprivation of the use of the property.”)
The majority, by allowing recovery for a de facto taking, which alleged that property was landlocked even though the issue was not raised in the original declaration of taking proceeding, is permitting the Property Owner to receive damages because he does not have access to Grudevich Road when he now *627has the same access that he always had. While the Eminent Domain Code intends for property owners to be compensated for damages that they incur as a result of governmental action, its purpose was not to permit a property owner to receive potentially hundreds of thousands of dollars in damages because his property became landlocked when his property, in reality, is not landlocked. For the foregoing reasons, I respectfully dissent.
Judge SMITH joins in this dissent.
. PennDOT estimated Property Owner’s property to be worth $460,000 before the taking and $315,000 after the taking.
. Properly Owner asserted that the property was part of an assembled economic unit and the value after the taking was $0, resulting in damages exceeding $3 million. The Board rejected his argument and found the doctrine inapplicable.
. Preliminary objections are governed by Section 406(a) Eminent Domain Code (Code). Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § l-406(a). Section 406(a) of the Eminent Domain Code provides in relevant part:
(a) Within thirty days after being served with notice of condemnation, the condemnee may file preliminary objections to the declaration of taking.... Preliminary objections shall be limited to and shall be the exclusive method of challenging (1) the power or right of the con-demnor to appropriate the condemned property unless the same has been previously adjudicated; (2) the sufficiency of the security; (3) any other procedure followed by the condem-nor; or (4) the declaration of taking. Failure to raise these matters by preliminary objections shall constitute a waiver thereof.