           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michael J. Groner,                            :
                            Appellant         :
                                              :
                     v.                       :   No. 1628 C.D. 2012
                                              :   Argued: November 13, 2013
David E. Kasmoch and Edna Mae                 :
Kasmoch, Ronald E. Downs, Lois                :
E. Downs a/k/a Lois E. Rapman and             :
Chad E. Downs                                 :
                                              :
                     v.                       :
                                              :
Independent Mountain Men of                   :
Pennsylvania, Inc., and Ross J.               :
Giacchino, Mark Giacchino, Blaise             :
A. Giacchino, and Michael Giacchino           :



OPINION
PER CURIAM                                        FILED: August 27, 2014


              This is one of three cases1 argued together before this court, sitting en
banc, all 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


    1
     See also In re Opening a Private Road (O'Reilly), No. 520 C.D. 2013 [O’Reilly IV] and
Raap v. Waltz, No. 975 C.D. 2012. O'Reilly has been designated as the lead opinion.
   2
     Act of June 13, 1836, P.L. 551, as amended, 36 P.S. §§ 2731-2891.
(O’Reilly), 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



                                         2
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 Giacchinos.3
               A 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.


   3
       The Downs and Giacchinos did not participate in either the hearings below or this appeal.



                                                3
             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



                                         4
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 the 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.
                 The only basis upon which Groner asserts that his private road
satisfies the requirement of a paramount public benefit is the fact that the
landlocked condition was caused by the construction of Interstate 80.                   The
Supreme Court in O’Reilly II recognized that such a circumstance may provide the
basis upon which to attribute a primary and paramount public benefit to the private
road, but only where the surrounding circumstances demonstrate “that the two
takings reasonably might be regarded as an interconnected course of events.” 5
A.3d at 258. In this regard, the Court cited as potentially relevant details, “whether
Appellee's use of the [Act] to restore access to the property was contemplated at
the time the Commonwealth removed it, and whether Appellee acted with

    4
        Because this appeal presents solely a question of law, our review is plenary.



                                                  5
reasonable promptitude...” Id. Here, Groner offered no evidence of such details
(nor any other indications of “interconnectedness”) and, indeed, the undisputed
facts suggest the contrary. The Interstate 80 condemnation is extremely remote in
time from all relevant events and parties here. That public project was not only
more than 35 years before any private road was sought, it was constructed more
than 20 years before Groner even purchased his property. There was, in addition,
no evidence concerning the condemnation, how the loss of road access was treated
in the condemnation or the intentions of the original parties.
             Groner argues that his proposed taking is nonetheless constitutional
under § 204(b)(9) of the Eminent Domain Code, 26 Pa. C.S. § 204(b)(9). We do
not agree. That section provides that Pennsylvania’s statutory prohibition against
use of eminent domain “for private enterprise” does not apply where “[t]he
property is used or to be used for any road, street, highway, trafficway or for
property to be acquired to provide access to a public thoroughfare for a property
which would be otherwise inaccessible as the result of the use of eminent domain
or for ingress, egress or parking of motor vehicles.” 26 Pa. C.S. § 204(a), (b)(9).
The same argument that Groner asserts was made to this Court on remand from the
Supreme Court in O’Reilly II, and this Court, sitting en banc, specifically rejected
Groner’s argument. In re Opening a Private Road (O’Reilly), 22 A.3d 291, 296-97
(Pa. Cmwlth. 2011) [O’Reilly III]. We noted that while § 204(b)(9) shows
sufficient public purpose necessary to satisfy the federal constitutional standard
established in Kelo v. City of New London, 545 U.S. 469 (2005), it “does nothing




                                          6
to show compliance with the more stringent standard” of primary and paramount
public benefit. 22 A.3d at 296.5
               Because the trial court correctly applied the standards set forth by our
Supreme Court in O’Reilly II, we affirm.




    5
      Groner is correct that in Raap v. Waltz, a panel of this Court accepted his argument that the
public was the primary and paramount beneficiary of a private road where a public highway
caused the landlocking, particularly in light of § 204(b)(9), even though the persons seeking the
private road did not own the property at the time of the condemnation and did not file an action
for a private road until long after they bought the property. However, the panel opinion was
withdrawn and the case was re-argued contemporaneously with this appeal.



                                                7
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Michael J. Groner,                    :
                          Appellant   :
                                      :
                     v.               :   No. 1628 C.D. 2012
                                      :
David E. Kasmoch and Edna Mae         :
Kasmoch, Ronald E. Downs, Lois        :
E. Downs a/k/a Lois E. Rapman and     :
Chad E. Downs                         :
                                      :
                     v.               :
                                      :
Independent Mountain Men of           :
Pennsylvania, Inc., and Ross J.       :
Giacchino, Mark Giacchino, Blaise     :
A. Giacchino, and Michael Giacchino   :


PER CURIAM                       ORDER


            AND NOW, this 27th day of August, 2014, the order of the Court of
Common Pleas of Butler County in the above-captioned case is AFFIRMED.
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michael J. Groner,                         :
                            Appellant      :
                                           :
                     v.                    :    No. 1628 C.D. 2012
                                           :    Argued: November 13, 2013
David E. Kasmoch and Edna Mae              :
Kasmoch, Ronald E. Downs, Lois             :
E. Downs a/k/a Lois E. Rapman and          :
Chad E. Downs                              :
                                           :
                     v.                    :
                                           :
Independent Mountain Men of                :
Pennsylvania, Inc., and Ross J.            :
Giacchino, Mark Giacchino, Blaise          :
A. Giacchino, and Michael Giacchino        :


BEFORE:      HONORABLE DAN PELLEGRINI, President Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
             HONORABLE RENÉE 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                       FILED: August 27, 2014



             For the reasons stated in my concurring opinion in In re Opening a
Private Road (O'Reilly), No. 520 C.D. 2013, I concur only in the result reached by
the court on this appeal.

                                        _____________________________________
                                        BONNIE BRIGANCE LEADBETTER,
                                        Judge

President Judge Pellegrini and Judges Simpson, Leavitt, Brobson, and Covey join
in this Concurring Opinion.
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael J. Groner,                            :
                          Appellant           :
                                              :
             v.                               :
                                              :
David E. Kasmoch and Edna Mae                 :
Kasmoch, Ronald E. Downs, Lois                :
E. Downs a/k/a Lois E. Rapman and             :
Chad E. Downs                                 :
                                              :
             v.                               :     No. 1628 C.D. 2012
                                              :
Independent Mountain Men of                   :     Argued: November 13, 2013
Pennsylvania, Inc., and Ross J.               :
Giacchino, Mark Giacchino, Blaise             :
A. Giacchino, and Michael Giacchino           :


BEFORE:      HONORABLE DAN PELLEGRINI, President Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
             HONORABLE RENÉE 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 COHN JUBELIRER                               FILED: August 27, 2014

      For the reasons stated in my concurring opinion in In Re: Opening a Private
Road (O’Reilly), __ A.3d __ (Pa. Cmwlth., No. 520 C.D. 2013, filed August 27,
2014), I concur only with the result reached in this appeal.



                                       RENÉE COHN JUBELIRER, Judge
     IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael J. Groner,                  :
                         Appellant :
                                    :
            v.                      :
                                    :
David E. Kasmoch and Edna Mae       :
Kasmoch, Ronald E. Downs, Lois      :
E. Downs a/k/a Lois E. Rapman and :
Chad E. Downs                       :
                                    :
            v.                      : No. 1628 C.D. 2012
                                    : Argued: November 13, 2013
Independent Mountain Men of         :
Pennsylvania, Inc., and Ross J.     :
Giacchino, Mark Giacchino, Blaise :
A. Giacchino, and Michael Giacchino :


BEFORE: HONORABLE DAN PELLEGRINI, President Judge
        HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
        HONORABLE RENÉE 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 BROBSON                       FILED: August 27, 2014
             For the reasons stated in my concurring opinion in In re
Opening a Private Road (O’Reilly), No. 520 C.D. 2013, I concur only in the
result reached by the court on this appeal.


                                          P. KEVIN BROBSON, Judge

President Judge Pellegrini and Judge Leadbetter join in this concurring
opinion.
