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In re Tax Parcel 27-309-216

Commonwealth Court of Pennsylvania

August 27, 2014

In Re: Tax Parcel 27-309-216; Scott and Sandra Raap, Appellants
v.
Stephen and Kathy Waltz

Argued November 13, 2013 

Appealed from No. 11-00,989. Common Pleas Court of the County of Lycoming. Anderson, J.

Marc S. Drier, Jersey Shore, for appellants.

Charles F. Greevy, III, Williamsport, for appellees.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE ANNE E. COVEY, Judge. Concurring Opinion by Judge LEADBETTER. President Judge PELLEGRINI and Judges SIMPSON, LEAVITT, BROBSON and COVEY join in this concurring opinion. Concurring Opinion by Judge COHN JUBELIRER. Concurring Opinion by Judge BROBSON. President Judge PELLEGRINI and Judges LEADBETTER and LEAVITT join in this concurring opinion.

OPINION

Page 751

PER CURIAM

This is the second of three cases[1] argued together before this court, sitting en banc, all of which involve essentially the same constitutional issue. Scott and Sandra Raap appeal an order of the Court of Common Pleas of Lycoming County granting summary judgment in favor of Stephen and Kathy Waltz in the Raaps' action seeking appointment of a board of viewers pursuant to the law commonly known as the Private Road Act.[2] In doing so, the trial court held that the Raaps could not open a private roadway across the Waltzes' land to access their landlocked property.

Page 752

It agreed with the Waltzes' argument that their use of the Act would be unconstitutional because the Raaps, and not the general public, would be its primary beneficiaries.

The facts are essentially undisputed. In 1992, the Department of Transportation condemned a portion of a tract of land owned by Terry and Sharon Berfield as part of a project to relocate part of Route 15 in Lycoming County. As a result of the condemnation, part of the Berfields' tract became landlocked. In November 1995, the Raaps purchased approximately 51 acres of land from the Berfields, 14 acres of which had been landlocked by the 1992 condemnation. The Raaps' landlocked property can be accessed only by crossing the Waltzes' adjacent property.

On June 15, 2011, the Raaps filed a civil action under the Private Road Act requesting the appointment of a board of viewers to open a private road across the Waltzes' property to connect the Raaps' parcel to the nearest public road. The Waltzes filed an answer with new matter seeking dismissal of the complaint. In depositions, the Raaps admitted that the access they sought across the Waltzes' land was for their use, as opposed to a particular public use, such as construction of a school. Thereafter, the Waltzes filed a motion for summary judgment.

After hearing oral arguments, the trial court granted summary judgment in favor of the Waltzes. In doing so, the trial court relied upon the Pennsylvania Supreme Court's holding in In re Opening a Private Road (O'Reilly), 607 Pa. 280, 5 A.3d 246 (Pa. 2010) [ O'Reilly II ], that a Private Road Act proceeding could pass constitutional muster only where the public is the primary and paramount beneficiary. The trial court concluded that the Raaps were not entitled to relief under the Act because the roadway they sought would benefit them, not the public. The trial court also rejected the Raaps' argument that Section 204 of the Eminent Domain Code, 26 Pa. C.S. § 204, established a public purpose because the Code does not apply directly to a Private Road Act matter and because the Raaps purchased their property after the Commonwealth's exercise of eminent domain caused the property to become landlocked. In this regard, the trial court stated " Plaintiffs purchased a landlocked parcel and presumably paid a price which reflected its situation and thus the prior condemnation cannot be seen as having effected a taking from them, the remedying of which is surely the purpose behind the amendment." (Opinion, April 23, 2012, at p.2) The present appeal followed.[3]

On appeal,[4] the Raaps again contend that because the public benefitted from the Commonwealth's exercise of eminent domain that caused their property to become landlocked in the first place, the public is also the primary and paramount beneficiary of the private road that will unlock their property; that the 2006 amendments to the Eminent Domain Code establish the necessary public purpose underlying their use of the Act; ...


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