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In Re: Laying Out and Opening of Private Road In Hazle Township

January 27, 2012

IN RE: LAYING OUT AND OPENING OF PRIVATE ROAD IN HAZLE TOWNSHIP


Appeal of: Stephen Perchak, James Perchak, Michael Perchak, Josephine Perchak and Donald E. Walp

The opinion of the court was delivered by: Renee Cohn Jubelirer, Judge

Argued: September 16, 2011

BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge (P.)

OPINION BY

JUDGE COHN JUBELIRER

Stephen Perchak, James Perchak, Michael Perchak, Josephine Perchak (collectively, Perchaks) and Donald E. Walp (Walp) (together with Perchaks, Neighbors) appeal from the Order of the Court of Common Pleas of Luzerne County (trial court) that granted the exceptions of Paul Brenner and Leonard Brenner (together, Brenners) from the Report of the Board of Viewers (Board), which denied Brenners‟ petition to open a private road across Perchaks‟ property (Petition).*fn1 Neighbors argue that the trial court erred in: (1) reversing the Board because it correctly considered the possibility of access to Brenners‟ property (the Property) by an implied easement over a different neighboring property; and (2) considering only what access was strictly necessary to reach the Property, rather than the access necessary to develop the Property for its highest and best use.

Brenners purchased the Property, which comprises two parcels totaling approximately 34.57 acres, from Mt. Laurel Memorial Park, Inc. (Mt. Laurel Park). The transfer left the Property without connection to a public road or highway. Around the time of the transfer, Brenners contracted with Perchaks for an easement over Perchaks‟ property to a private right-of-way on Perchaks‟ property known as Transportation Drive, which connects to PA Route 309 and services Perchaks‟ trucking business and a business owned by Walp. This easement was conditioned on the use of the Property as a scrap yard. The Property is located in a B1 zoning district, where a scrap yard is not a use permitted as of right. Brenners sought a variance from the Hazle Township Zoning Authority (Authority) to operate a scrap yard on the Property. The Authority denied the variance and this Court affirmed the Authority‟s decision.

Thereafter, on October 16, 2009, Brenners petitioned the trial court to appoint the Board pursuant to the Act commonly known as the Private Road Act*fn2 (the Act). The trial court appointed the Board, which held three hearings on Brenners‟ Petition. The Board received evidence, including the Engineering Evaluation of Alternate Routes From S.R. 309 to Lands Owned by Leonard and Paul Brenner prepared by Schumacher Engineering, Inc. (Schumacher Report), which Brenners offered into evidence, and the Engineering Report for Easement Routes A and B From S.R. 309 to Lands Owned Now [or] Formerly by Leonard and Paul Brenner, prepared by J.T.B. Surveying and Engineering, which Neighbors offered into evidence. The parties also entered a number of deeds into evidence. While there appears to have been testimony before the Board, this testimony was not transcribed.

The Board issued its Report and determined that the private road sought by Brenners "is not for purposes of merely gaining access to their clearly landlocked land, but is designed to permit them to develop the [Property] in conformity with the B1 zoning classification assigned to the area in which their land is located." (Board Report at 2.) The Board stated that the testimony of John G. Synoski, P.E., who prepared the Schumacher Report, indicates that Brenners contemplated a road that would comply with the standards set by Hazle Township and the Department of Transportation, not merely a road that would meet the bare necessity of accessing the Property. (Board Report at 2-3.) The Board stated that, under the circumstances of the case, Brenners were not entitled to a private road under the Act that would facilitate the highest and best use of the land when it appeared that an easement by necessity should be available through the property of Mt. Laurel Park, which contributed to the landlocked nature of the Property in its conveyance. (Board Report at 3.) The Board, therefore, denied Brenners‟ Petition.

Brenners filed exceptions to the Board‟s Report. The trial court granted Brenners‟ exceptions and remanded the matter to the Board to determine the precise placement of and compensation for the private road. The trial court determined that it was not within the Board‟s power to "determine whether implied easements exist" and that "the sole purpose of the Board, once it determines that Petitioner is landlocked, is to lay out the road in the place petitioned, making any adjustments necessary." (Trial Ct. Order at 1-2 (emphasis added).) Neighbors now appeal to this Court.*fn3

We first address Neighbors‟ argument that the trial court erred in holding that the Board should disregard the potential implied easement by necessity over the property of Mt. Laurel Park in determining that a private road over Perchaks‟ property was necessary under the Act. Section 11 of the Act provides:

[t]he 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 . . . direct a view to be had of the place where such road is requested, and a report thereof to be made.

36 P.S. § 2731. Section 12 of the Act provides that:

[i]f it shall appear by the report of viewers to the court directing the view, that such road is necessary, the said court shall direct what breadth the road so reported shall be opened, and the proceedings in such cases shall be entered on record, as before directed, and ...


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