Dissenting.
Because Elizabeth Harrington (Harrington) failed to meet her burden of proving that the Department of Transportation (DOT) changed the grade of U.S. Route 822 in accordance with Daw v. Department of Transportation, 768 A.2d 1207 (Pa.Cmwlth.2001), and also failed to prove that DOT caused permanent interference with a road or highway, I respectfully dissent.
In accordance with Section 612 of the Eminent Domain Code (Code), an abutting landowner may recover consequential damages resulting from only three causes: “(1) change of grade of a road or highway; (2) permanent interference with access to a road or highway; and (3) injury to surface support.”1 Daw, 768 A.2d at 1210.
In first addressing the change of grade issue, a landowner, such as Harrington, who seeks consequential damages based on a change in grade, must establish both that there was a change in grade and that the change caused damages to the landowner’s *678property. In Daw, the landowner alleged that by resurfacing a road, which entailed the placement of a one-inch thick layer of asphalt over the existing road, DOT changed the grade of the road. This court disagreed stating that “the one-inch thick uniform resurfacing of the Road and berm in need of repair does not constitute a change of grade under Section 612 of the Code.” Id., 768 A.2d at 1211.
In this case, DOT similarly uniformly resurfaced Route 322, as part of its normal maintenance. Although in this case DOT milled off 1 inch of Route 322 before resurfacing it, DOT nonetheless uniformly resurfaced the road as it did in Daw. Although Harrington argues that the slope from the center of the road to her front door and garage has increased, such an inquiry is not relevant. Rather, we are concerned with whether the grade of the road itself changed and as the Majority acknowledges and Harrington concedes, the slope of the road from its center to the shoulder remained the same. (Majority opinion at p. 673, Harrington brief at p. 10.) Moreover, Harrington produced no evidence that the grade of the road had changed. Although she testified that the height of the road changed after the resurfacing, as was the case in Daw, the only evidenced produced as to the grade of the road was presented by DOT. The testimony of DOT’s engineer revealed that there was no change in the grade of the road and that the existing slope of the road was maintained.
I also disagree with the majority’s conclusion that DOT’s actions resulted in permanent interference with access to a road or highway. The right of access is defined as the right of reasonable ingress and egress. Department of Transportation v. Richards, 124 Pa.Cmwlth. 432, 556 A.2d 510, 513 n. 7 (1989). Here, Harrington alleged that when DOT resurfaced Route 322, it paved the berm, which has interfered with reasonable and safe access to her home. Specifically, once DOT paved the gravel berm, cars more frequently travel on the shoulder, which is located five feet from her front door. While this may be true, such does not amount to a substantial deprivation of reasonable ingress and egress. DOT has not impaired "Harrington’s access to her home.
In accordance with the above, because Harrington failed to prove a change in grade and also failed to prove permanent interference with access to a road or highway, Harrington has failed to make a case for consequential damages and I would reverse the order of the trial court.
. Section 612 of the Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-612.