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ANTHONY MATTEI AND CLARA T. MATTEI v. PETER HURAY AND MARY HURAY (11/17/80)

decided: November 17, 1980.

ANTHONY MATTEI AND CLARA T. MATTEI, APPELLANTS
v.
PETER HURAY AND MARY HURAY, APPELLEES



Appeal from the Order of the Court of Common Pleas of Sullivan County in case of In Re: Laying Out and Opening of a Private Road, No. 78-202.

COUNSEL

Scott A. Williams, for appellants.

Kenneth B. Lee, Lee & Simpson, for appellees.

Judges Wilkinson, Jr., Rogers and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 54 Pa. Commw. Page 562]

On August 27, 1979, the Court of Common Pleas of Sullivan County entered an order which confirmed the report of a Board of View recommending that Peter Huray and Mary Huray (Hurays) be granted the right to open a private road over property owned by Anthony Mattei and Clara Mattei (Matteis). The Matteis have filed this appeal from the lower court order. We affirm.

The Hurays filed a Petition on July 6, 1978 to appoint viewers and lay out a private road pursuant to Section 11 of the Act of June 13, 1836 (Act), P.L. 551, as amended, 36 P.S. ยง 2731. A Board of View (Board) was duly appointed and, after a hearing and view of the site, filed a report on October 31, 1978.

The record shows that the Hurays own a piece of land that has no direct access to a public road. They

[ 54 Pa. Commw. Page 563]

    propose to build a private road across the Mattei property to a state highway. The road would be approximately 190 feet long. The Board of View found, inter alia, that the Hurays do have a right-of-way from their property to a public road, but that this right-of-way is not feasible for a private road because the topography would make construction of a road extremely expensive and inclement weather would close the road for a portion of each year. The Board concluded that the proposed road over the Mattei property is necessary and awarded damages to the Matteis in the amount of $1000.

The Matteis filed an appeal from the Board's report to the lower court demanding a jury trial and specifically objecting to the Board's failure to find available access either across lands of the Hurays or lands of persons other than the Matteis. The Hurays moved to quash the appeal. The trial court denied the motion but ordered an evidentiary hearing and oral argument on the specific objections filed by the Matteis. Following the hearing, the lower court entered an order confirming the Board's report and granting a jury trial solely on the issue of damages.*fn1 The Matteis have filed this appeal from that order.

The Matteis contend that the lower court erred (1) in failing to grant a trial de novo on the issue of necessity for the proposed private road and (2) in considering the report of the Board rather than making an independent determination of necessity. Further, the Matteis contend ...


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