*6Concurring and Dissenting Opinion by
Judge Mencer :I concur in the vacating of that part of the order of the Court of Common Pleas of Westmoreland County that dismissed the condemnees’ preliminary objections to the sufficiency of the bond, but I respectfully dissent to the affirmance of that part of the order that dismissed the condemnees’ preliminary objections to the nature of the title acquired and the description of the property condemned as averred in the declaration of taking.
The majority takes the view that the condemnees’ second preliminary objection does not allege a de facto taking. Whether or not we label this pleading as one alleging a de facto taking of the condemnees’ entire interest in the property, in addition to the de jure taking of an easement, I find nothing in the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. §1-101 et seq., which proscribes the raising of such a question in preliminary objections. Section 406(a) of the Code, 26 P.S. §1-406(a), provides that “[preliminary objections shall be limited to and shall be the exclusive method of challenging ... (4) the declaration of taking. Failure to raise these matters by preliminary objections shall constitute a waiver thereof.” (Emphasis added.) Among the requirements of a declaration of taking is “[a] statement of the nature of the title acquired, if any.” Section 402(b)(6) of the Code, 26 P.S. §1-402(b) (6). Since the condemnees are claiming that the nature of the title taken by the Authority was not an easement but a total taking, they could properly raise the question by way of preliminary objections. As we stated in Commonwealth v. Herold, 17 Pa. Commonwealth Ct. 148, 151, 330 A.2d 890, 893 (1975), where the condemnees claimed a total taking while the Commonwealth’s declaration of taking *7claimed only an easement, “any issue regarding the extent of the taking was foreclosed when condemnees failed to file preliminary objections to the Commonwealth’s Declaration of Taking of a flood easement. . . .” (Emphasis, footnote omitted.) See also Nelis v. Redevelopment Authority of Allegheny County, 12 Pa. Commonwealth Ct. 338, 315 A.2d 893 (1974). I am of the opinion that Commonwealth v. Herold, supra, correctly stated the law and should be followed here.
The majority’s discussion of the use of preliminary objections to raise this issue does not, in my view, fully recognize the uniqueness of such a pleading in an eminent domain case. As we stated in Jacobs v. Nether Providence Township, 6 Pa. Commonwealth Ct. 594, 598, 297 A.2d 550, 553 (1972),
[t]he role of preliminary objections to a formal ■declaration of taking in eminent domain cases as prescribed by Section 406 of the Eminent Domain Code, 26 P.S. §1-406, and as construed by the Supreme Court and this Court is not precisely that of preliminary objections as prescribed by the Pennsylvania Rules of Civil Procedure in actions covered by those rules. In eminent domain cases, they serve a somewhat broader purpose and are intended as a procedure to resolve expeditiously threshold legal issues without awaiting further proceedings before viewers and possibly a jury trial on appeal from a viewer’s report. (Emphasis added.)
Thus, while Section 406 is entitled “Preliminary objections”, this label may be misleading. See Statutory Construction Act of 1972, 1 Pa. C.S. §1924 (headings may be used in aid of construction but are not controlling).
If the condemnees’ allegation that their entire interest in the property has been taken is correct, the consequences of the majority’s holding is that, while *8they could be awarded the full fair market value of the property, they would still have the bare legal title and the accompanying obligations of a property owner, e.g., potential tax obligations and duties as to invitees, licensees, and trespassers. To avoid such a result, I am of the view that, if the landowner objects to the declaration of taking, the lower court should decide preliminarily as a matter of law whether the proposed taking so clearly renders the property valueless that it would be unrealistic for the case to proceed any further as merely the taking of an easement.
Therefore, I would also remand this case for a hearing on the nature of the title acquired and the description of the property condemned as averred in the declaration of taking.