Michael J. Groner, Appellant
David E. Kasmoch and Edna Mae Kasmoch, Ronald E. Downs, Lois E. Downs a/k/a Lois E. Rapman and Chad E. Downs
Independent Mountain Men of Pennsylvania, Inc., and Ross J. Giacchino, Mark Giacchino, Blaise A. Giacchino, and Michael Giacchino
Argued November 13, 2013
Appealed from No. 2009-12284. Common Pleas Court of the County of Butler. Horan, J.
William P. Bresnahan, Pittsburgh, for appellant.
William J. Cisek, Franklin, for appellees David E. Kasmoch and Edna Mae Kasmoch.
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. CONCURRING OPINION BY JUDGE COHN JUBELIRER. CONCURRING OPINION BY JUDGE BROBSON. President Judge Pellegrini and Judges Simpson, Leavitt, Brobson, and Covey join in this Concurring Opinion. President Judge Pellegrini and Judge Leadbetter join in this concurring opinion.
This is one of three cases argued together before this court, sitting en banc,
all of which involve constitutional challenges to the law commonly known as the Private Road Act. Michael J. Groner appeals from an order of the Butler County Court of Common Pleas which sustained exceptions to a board of view report and denied Groner's petition for a private road. The trial court found that his private road would constitute an unconstitutional taking of property for private benefit under our Supreme Court's decision in In re Opening a Private Road (O'Reilly), 607 Pa. 280, 5 A.3d 246 (Pa. 2010) [ O'Reilly II ]. The issue disputed here is whether the public is automatically the primary and paramount beneficiary of a private road simply because the landlocked condition was originally caused by construction of a public project, no matter how remote in time and otherwise unconnected that public project was from both the seeking of the private road and the private owner's acquisition of the landlocked property. Because the trial court faithfully applied our Supreme Court's decision in O'Reilly II, we affirm.
The property for which Groner seeks a private road, Venango Tax Parcel No. 27-06-35, consists of 20 acres of land, approximately one-third in Venango County and two-thirds in Butler County. The northern border of the property fronts on a public road, and there is a house on the northern, Venango County, portion of the property. In or about 1970, the Commonwealth constructed Interstate 80 across the Butler County portion of the property, rendering the southern half of the property landlocked. The southern, landlocked portion of the property is unimproved woodland.
In 1993, Groner purchased his property for $36,000. Groner's primary intended use of the property was as a dwelling in the northern, portion of the property with public road access. At the time Groner purchased his property, the southern half had been landlocked by Interstate 80 for over 20 years.
Appellees David E. and Edna Mae Kasmoch own the land that borders the west side of Groner's property. The Kasmoch property is almost entirely woodland. The Kasmochs purchased their property in 1994 and use it as a deer hunting preserve. Appellee Independent Mountain Men of Pennsylvania, Inc. (IMM) is the owner of the land that borders the east and south sides of the landlocked portion of Groner's property. IMM acquired its properties between 1985 and 1993 and uses them for events showing how the mountain men of the early 1800s lived.
On March 20, 2009, Groner filed a petition in the Court of Common Pleas of Venango County seeking a private road across the Kasmoch property and property owned by Ronald E. Downs, Lois E. Downs, a/k/a Lois E. Rapman and Chad E. Downs. Because the southern, landlocked portion of the property is entirely in Butler County, and the other affected properties were also in Butler County, the case was transferred by agreement to the Butler County Court of Common Pleas. Thereafter, the Kasmochs joined IMM and Ross, Mark, Blaise and Michael ...