                             [J-100-2018] [MO: Mundy, J.]
                     IN THE SUPREME COURT OF PENNSYLVANIA
                                  MIDDLE DISTRICT


    IN RE: PETITION OF BURTON R.                :   No. 9 MAP 2018
    ADAMS AND JOANNE M. ADAMS, HIS              :
    WIFE                                        :   Appeal from the Order of the
                                                :   Commonwealth Court dated
                                                :   September 21, 2017 at No. 863 CD
    APPEAL OF: WILLIAM DITTMAR AND              :   2016 Affirming the Order of the
    JAMES M. CORL                               :   Sullivan County Court of Common
                                                :   Pleas, Civil Division, dated April 6,
                                                :   2016 at No. 2013-CV-90.
                                                :
                                                :   ARGUED: December 5, 2018


                                 CONCURRING OPINION


JUSTICE WECHT                                                    DECIDED: July 17, 2019
        I concur in the result. The Majority reverses on the basis that the Adamses’ future

intended use of the property is irrelevant to determining necessity under the Private

Roads Act.1 I hesitate to conclude that such evidence is categorically immaterial to the

inquiry. Instead, I would reverse the Commonwealth Court’s order on the ground that no

public purpose exists for opening the private road used by the Chesapeake Corporation

(“Chesapeake roadway”) in order to provide the Adamses access to the northern portion

of their property.

        In In re Opening Private Road for Benefit of O’Reilly, 5 A.3d 246 (Pa. 2010),

responding to a constitutional challenge to the Act, this Court concluded that “a physical

1       36 P.S. §§ 2731-2891 (“the Act”). Under the Act, the owner of a landlocked
property is permitted to petition the Court of Common Pleas for the appointment of a
Board of View to evaluate the necessity of a private road to connect the property with the
nearest public thoroughfare. See id. § 2731. “If it shall appear by the report of viewers
to the court directing the view, that such road is necessary, the said court shall direct what
breadth the road so reported shall be opened. . . .” Id. § 2732 (emphasis added).
invasion and permanent occupation of private property, such as that which would be

accomplished by the creation of a private road under the Act, is a taking.” Id. at 257.

“Absent a valid exercise of the power of eminent domain,” we explained:

      it is not within the power of the Legislature to invest either an individual or a
      corporation with the right to take the property of a private owner for the
      private use of some other individual or corporation, even if a method is
      provided for ascertaining the damages and paying what shall be deemed
      just compensation.
Id. (quoting Phila. Clay Co. v. York Clay Co., 88 A. 487, 488 (Pa. 1913)). Proceeding

under eminent domain principles, this Court emphasized that the Constitutions of the

United States and Pennsylvania mandate that private property may be taken only for a

public purpose.2 Indeed, the “public must be the primary and paramount beneficiary of

the taking.” Id. at 258 (emphasis added); see Middletown Twp. v. Lands of Stone, 939

A.2d 331, 338 (Pa. 2007) (emphasizing that the public purpose must be “real and

fundamental, not post-hoc or pre-textual”).

      The O’Reilly Court acknowledged that there is an “indirect benefit” to the public in

opening a road for a private property owner because “otherwise inaccessible swaths of

land in Pennsylvania would remain fallow and unproductive, whether to farm, timber or

log for residences, making that land virtually worthless and not contributing to commerce

or the tax base of this Commonwealth.” O’Reilly, 5 A.3d at 258. However, this Court

rejected the sufficiency of such an “indirect benefit” to sustain the constitutionality of




2      U.S. CONST. amend. V (“[N]or shall private property be taken for public use, without
just compensation.”); PA. CONST. art. 1, § 10 (“[N]or shall private property be taken or
applied to public use, without authority of law and without just compensation being first
made or secured.”).



                            [J-100-2018] [MO: Mundy, J.] - 2
takings under the Act without a determination that the “public is the primary and

paramount beneficiary.” Id. at 258.3

      In the case before us, it is clear that opening the Chesapeake roadway to the

Adamses primarily serves their interests. Any benefits to the public are tenuous and

incidental, at best. Before the Board of View, Mr. Adams testified that he sought an

opening of a private road in order to reach a portion of his property for the purpose of

“build[ing] a house or a cabin on the corner where it has a good view.” N.T., 7/24/2015,

at 22. On cross-examination, when Mr. Adams was asked if the “need for access . . . is

so that you may construct a single family residential home on your land overlooking the

valley below,” Mr. Adams responded, “That’s accurate. . . .” N.T., 7/24/2015, at 32. The

Board of View recognized as much when it concluded that the Adamses “should be

granted the requested access over and upon [Corl’s] land for the stated purpose of

constructing and accessing a seasonal cabin. . . .” Board of View Report, 8/31/2015, at

10. Based upon these admissions and the Board’s findings, it seems clear that the “true

purpose” of opening the Chesapeake roadway to the Adamses was to benefit the

Adamses.

      At different points in the proceedings below, the Adamses invoked two separate

public purposes in order to justify opening the Chesapeake roadway. Neither of these

established that “the public is the primary and paramount beneficiary.” See O’Reilly, 5

A.3d at 258. The Adamses first claimed that the Chesapeake roadway serves a public

purpose by transporting and supplying natural gas to the public. Mr. Adams testified that


3      The O’Reilly Court stopped short of declaring the Act unconstitutional. However,
the circumstances under which the opening of a private road would be constitutionally
permissible under the Act appear tightly circumscribed. Indeed, on remand in O’Reilly,
one judge posited that this Court’s decision in O’Reilly “for all intents and purposes
rendered the Act constitutionally unenforceable.” In re O’Reilly, 100 A.3d 689, 698 (Pa.
Cmwlth. 2014) (Leadbetter, J., concurring).


                            [J-100-2018] [MO: Mundy, J.] - 3
the Chesapeake roadway is “used constantly by Chesapeake to access the gas pad

which is . . . providing gas to the general public through a pipeline.” N.T., 7/24/2015, at

10. I agree with Judge Hearthway’s conclusion below that Chesapeake’s use of the

roadway is “irrelevant and cannot, as a matter of law, support a finding of public benefit.”

See In re Adams, 170 A.3d at 600 (Hearthway, J., dissenting). As a matter of law, the

sole inquiry is whether opening the Chesapeake roadway to the Adamses will benefit the

public. Opening the Chesapeake roadway to the Adamses would not advance the public

purpose of transferring and supplying natural gas, an enterprise that had been ongoing

for approximately two years before the Adamses sought to open the private road.4

       The Adamses next invoked the public purpose of allowing the public to hunt on

their property. Mr. Adams testified that, on December 15, 2014, he entered into a

“contract with the Pennsylvania Game Commission under the Safety Zone Program to

allow . . . the general public to hunt” on his property. N.T., 7/24/2015, at 19-20. I do not

mean to foreclose the possibility that, under certain circumstances, opening a private road

to allow for recreational hunting may be considered a public purpose.          But such a

proposed use must not be “post-hoc or pre-textual.” See Middletown Twp., 939 A.2d at

338. The Adamses did not enroll their property with the Game Commission until twenty-

two months after they filed their petition to open the Chesapeake roadway. Only after

Corl filed exceptions to the Board of View’s initial decision did the Adamses advance this

alleged public purpose. The timing of the Adamses’ enrollment of their property with the

Game Commission, coupled with the admissions made by Mr. Adams before the Board

of View, compel my conclusion that allowing hunters onto the property was not the real

or fundamental purpose supporting the opening. It was a post hoc justification, a pretext.

4     Mr. Adams testified that Chesapeake built the roadway five or six years before he
sought to open the private road, and that the gas pad had been operational for two years
preceding the instant litigation. N.T., 7/24/2015, at 12-13.


                             [J-100-2018] [MO: Mundy, J.] - 4
      We are required to analyze openings under the Act pursuant to principles of

eminent domain. The Adamses, not the public, would be the primary and paramount

beneficiaries of the opening of the Chesapeake roadway. I would reverse the decision of

the Commonwealth Court on that basis.

      Chief Justice Saylor and Justice Todd join this concurring opinion.




                           [J-100-2018] [MO: Mundy, J.] - 5
