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PRIVATE ROAD NESCOPECK TOWNSHIP. APPEAL TIMOTHY POTTER (10/10/80)

decided: October 10, 1980.

IN RE PRIVATE ROAD IN NESCOPECK TOWNSHIP. APPEAL OF TIMOTHY POTTER


No. 693 October Term, 1979, Appeal from an Order of the Court of Common Pleas of Luzerne County, Civil Action, Law, No. 1003 of 1979.

COUNSEL

Franklin E. Kepner, Jr., Berwick, for appellant.

Robert E. Bull, Berwick, for appellees.

Hester, Montgomery and Cirillo, JJ.*fn*

Author: Hester

[ 281 Pa. Super. Page 343]

Presently before the court is the appeal of petitioner Timothy Potter, sometimes Potter, from the order of the lower court dated February 26, 1979, wherein his petition to open a private road was denied.

The salient facts may be briefly summarized as follows: On February 6, 1979, appellant Potter filed a petition in the Court of Common Pleas, Luzerne County, for the appointment of a Board of Viewers pursuant to the Act of June 13, 1836, P.L. 551, Section 11; April 4, 1901, P.L. 65, No. 32, Section 1; April 28, 1927, P.L. 485, Section 1, (36 P.S. 2731), for the purpose of opening a private road from his land-locked property to Pennsylvania Legislative Route 40017.

On that date, the lower court issued a rule upon the respondents, the abutting land owners, to show cause why a Board of Viewers should not be appointed. Respondents, thereafter, filed an answer and new matter in response to appellant's petition to which appellant filed a reply.

[ 281 Pa. Super. Page 344]

A hearing on appellant's rule was heard on February 26, 1979. No testimony was taken but counsel for the parties and the lower court engaged in a dialogue which is of record. On that date, the lower court entered its order denying appellant's petition for the appointment of a Board of Viewers.*fn1 Thereafter, this timely appeal.

Appellant's petition was brought pursuant to 36 P.S. Section 2731 which provides:

ยง 2731. Proceedings to open private roads

The several courts of quarter sessions shall, in open court as aforesaid, upon the petition of one or more persons, associations, partnerships, stock companies, or corporations, for a road from their respective lands or leaseholds to a highway or place of necessary public resort, or to any private way leading to a highway, or upon the petition of the chief executive officer of any executive or administrative department of the State Government for a road from any public highway across any lands of any person, association, or corporation to the boundary line of any lands owned, controlled, or administered by the Commonwealth, direct a view to be had of the place where such road is requested, and a report thereof to be made, in the same manner as is directed ...


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