Groner v. Kasmoch

98 A.3d 746, 2014 Pa. Commw. LEXIS 420
CourtCommonwealth Court of Pennsylvania
DecidedAugust 27, 2014
StatusPublished
Cited by1 cases

This text of 98 A.3d 746 (Groner v. Kasmoch) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Groner v. Kasmoch, 98 A.3d 746, 2014 Pa. Commw. LEXIS 420 (Pa. Ct. App. 2014).

Opinions

OPINION

PER CURIAM.

This is one of three cases1 argued together before this court, sitting en banc, [747]*747all of which involve constitutional challenges to the law commonly known as the Private Road Act.2 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 (2010) [O’Reilly //]. 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 Kas-moch 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 Giacchino as additional respondents, asserting that Groner’s access should instead be across properties owned by IMM and the Giacchi-nos.3

[748]*748A board of view conducted a site view of the properties at issue and held a hearing concerning the proposed private road. At the board of view hearing, Groner testified that his purpose for the private road is to harvest timber on the southern, landlocked portion of his property. Groner testified that prior to 2008, he asked the Kasmochs for permission to cross the Kasmoch property to remove timber from the southern landlocked portion of his property on only two occasions, in approximately 2000 and 2005, and that on those two occasions they gave him permission. No testimony or other evidence was introduced that Groner ever sought continuous access to the landlocked portion of his property at any time prior to 2008. There was also no evidence that the Kasmochs had ever granted Groner continuous permissive access or that there was a revocation of prior access by the Kasmochs.

The board of view issued a report finding that the private road should traverse the Kasmoch property. The Kasmochs filed exceptions to the report contesting the location of the private road. Subsequently, the Kasmochs filed supplemental exceptions to the report of the board of view, asserting that the private road was an unconstitutional taking of private property for a private purpose under our Supreme Court’s September 30, 2010 decision in O’Reilly II. The trial court remanded the case to the board of view to develop a record on the issue of whether the public was the primary and paramount beneficiary of the private road sought by Groner.

On June 13, 2011, the board of view held a hearing at which the parties had the opportunity to present additional evidence on the issue encompassed by the remand order. Groner presented no additional evidence at that hearing and represented that he had no evidence as to what occurred in the Interstate 80 condemnation. Groner admitted that “it is impossible to determine whether the use of the Private Road Act to restore access to the property was contemplated at the time the Commonwealth removed it.” In addition, Groner did not introduce any evidence that the ability to open the landlocked portion of his property was considered by him in his purchase of the property or affected the price that he paid when he purchased the property.

Following the remand hearing, the board of view issued a second report finding that the construction of Interstate 80 in 1970, over 20 years before Groner bought the property and over 35 years before the private road was sought, supplied the proposed private road with sufficient public benefit for the taking to be constitutional under O’Reilly II, and reaffirmed the findings of its first report. The Kasmochs filed exceptions to the Second Board of View Report, asserting that the Private Road Act was unconstitutional and that Groner could not prevail in his private road action because it was not sufficiently connected to the construction of Interstate 80 to establish that the private road served a public purpose. The trial court ruled that Groner’s private road was an unconstitutional taking of property under O’Reilly II, rejecting the Second Report of the Board of View, and denying Groner’s petition for a private road. Groner filed the instant appeal.4

As noted in the companion case of Raap v. Waltz, No. 975 C.D.2012, our Supreme Court’s decision in O’Reilly II is discussed in detail in our lead opinion, In re Opening a Private Road (O’Reilly), 520 C.D.2013 [O’Reilly IV], and will not be repeated here. Suffice it to say that the Court in O’Reilly II did not hold the Act per se unconstitutional but did hold that use of [749]*749the Act was constitutionally limited to situations in which the public was the primary and paramount beneficiary of its use, and here common pleas found that Groner failed to meet this burden. We discern no error in the trial court’s analysis.

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Related

In Re: Tax Parcel 27-309-216 S. and S. Raap v. S. and K. Waltz
98 A.3d 750 (Commonwealth Court of Pennsylvania, 2014)

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Bluebook (online)
98 A.3d 746, 2014 Pa. Commw. LEXIS 420, Counsel Stack Legal Research, https://law.counselstack.com/opinion/groner-v-kasmoch-pacommwct-2014.