Carla J. Koontz and Susan C. Waugerman, Executrices of The Estate of R. Carl Pencil, a/k/a Richard Carl Pencil, Appellants
William J. Baer, III and Susan B. Baer, his wife, Nelson Lee Miller and Amy J. Miller, his wife, Sarah Nichole Hocker, Ryan Christopher Hocker, and George J. Shannon and Donna M. Shannon, his wife
Argued: September 12, 2013
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ANNE E. COVEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
ROCHELLE S. FRIEDMAN, Senior Judge
Carla J. Koontz and Susan C. Waugerman, Executrices of The Estate of R. Carl Pencil, a/k/a Richard Carl Pencil (Pencil) appeal from the May 22, 2012, order of the Bedford County Court of Common Pleas (trial court), which dismissed the exceptions filed by Pencil to the Board of Viewers' (Viewers) report, confirmed the report and, among other things, directed the Viewers to supplement their report within 60 days with a plot or draft of the private road that they opened as required by section 3 of the Act of June 13, 1836, P.L. 551, as amended, 36 P.S. §1831 (Act).We vacate and remand.
Pencil was the owner of rural land in Bedford County. For at least 20 years, with the permission of the adjoining landowners, Pencil used a private road (Proposed Pencil Road) to reach his remote property. Upon realizing that he would need a private right-of-way of ingress and egress over the adjoining neighbors' land in order to sell the property, Pencil petitioned the trial court, naming his neighbors as defendants, for a private road/right-of-way under section 11 of the Act, 36 P.S. §2731. None of the defendants filed any pleadings or objections and the Viewers were convened.
Before the Viewers, Pencil introduced a draft of the Proposed Pencil Road and presented testimony. The Viewers attempted to view the Proposed Pencil Road, but could not see its entirety due to a locked gate. The Proposed Pencil Road ran though neighboring properties, including a portion of property owned by Appellees William J. Baer, III and Susan B. Baer, his wife (Baer).
The Viewers found the necessity for a private road pursuant to section 11 of the Act, 36 P.S. §2731. However, the Viewers did not accept the Proposed Pencil Road, which Pencil has used for the past 20 years. Instead, the Viewers issued a report that granted Pencil a right-of-way through the center of the Baer's property, on an old road previously used by Baer for logging (Baer Logging Road). The Proposed Pencil Road includes a portion of the Baer Logging Road. A draft of the Baer Logging Road had not been presented to the Viewers, nor was it attached to their report. Pencil appealed to the trial court, which affirmed the decision of the Viewers, but ordered the Viewers to attach a draft of the Baer Logging Road within 60 days. Pencil appealed to this court.
Pencil and Baer agree that the Viewers' decision should be set aside because the Viewers never actually viewed the property they chose to utilize for the right-of-way. We agree.
We initially note that the Viewers have exclusive discretion to determine where a private road will be located. Holtzman v. Etzweiler, 760 A.2d 1195, 1197 (Pa. Cmwlth. 2000).
The location of the road is wholly within the province of the viewers. Viewers go upon the premises of a proposed road and observe all the physical aspects of the land and are far better able to select a location than any judges sitting in the courthouse. The statute gives the viewers power to locate the road.
Id. (citation omitted.) However, this discretion is premised upon the Viewers actually viewing the proposed location of the road. Section 2 of the Act, 36 P.S. §1785, provides that the Viewers "shall view such ground" that is the subject of the petition for a right-of-way.
In accordance with section 2 of the Act, 36 P.S. §1785, in laying out the road, the Viewers must consider four factors: shortest distance, best ground over which the private roadway is to be opened, the least injury to the private property, and the location proposed by the petitioner. 36 P.S. §1785; In re Laying Out and Opening a Private Road (Zeafla), 592 A.2d 343, 347 n.4 (Pa.Super. 1991); see also Reber v. Tschudy, 824 A.2d 378, 386 (Pa. Cmwlth. 2003).
Here, there are two rights-of-way at issue: the Proposed Pencil Road and the Baer Logging Road. The Viewers did not view all, or even a majority, of the land prior to making their determination. The record reflects that a gate was locked, precluding the Viewers from seeing a portion of the Proposed Pencil Road.
On the date of the view, on attempting to view the road proposed by Petitioner, the view was frustrated due to none of the parties having a key to a gate that was across the proposed private road. The road proposed by [Pencil], and testified to as his access to his ...