            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


In Re: Tax Parcel 27-309-216                :
                                            :
Scott and Sandra Raap,                      :
                           Appellants       :
                                            :
             v.                             :   No. 975 C.D. 2012
                                            :   Argued: November 13, 2013
Stephen and Kathy Waltz                     :


OPINION
PER CURIAM                                      FILED: August 27, 2014


             This is the second of three cases1 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. 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

    1
     See also In re Opening a Private Road (O'Reilly), No. 520 C.D. 2013 [O’Reilly IV] and
Groner v. Kasmoch, No. 1628 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.
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), 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


                                        2
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; and, finally, that our Supreme Court in
O’Reilly II did not hold the Act per se unconstitutional and, indeed, later upheld
use of the Act in In re Private Road in Speers Boro, 11 A.3d 902 (Pa. 2011).
              The history of the O’Reilly litigation, and our Supreme Court’s
decision in O’Reilly II are discussed at length 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. We agree with the Raaps that the Court in O’Reilly II did not hold the Act per
se unconstitutional. However, it 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 the Raaps failed to meet

    3
       On March 15, 2013, a three judge panel of this court reversed, but that opinion and order
was withdrawn on May 21, 2013.
     4
       Our review of the trial court’s grant of summary judgment is plenary in nature, as it
involves solely a question of law. Summary judgment is appropriate only if “there is no genuine
issue of any material fact as to a necessary element of the cause of action.” PA. R.C.P. No.
1035.2(1). Therefore, judgment may be entered only when, after examining the record in the
light most favorable to the non-moving party and resolving all doubts as to the existence of a
genuine issue of material fact against the moving party, the moving party is clearly entitled to
judgment as a matter of law.


                                               3
this burden. We also agree that the public was the undeniable beneficiary of the
condemnation for the Route 15 relocation, but the evidence of connection between
the condemnation and use of the Act, at least as to the factors cited as relevant by
our Supreme Court, was less than compelling. As noted above, the Raaps
purchased the property in 1995, and in 2011 filed their action to obtain a private
road across the Waltz land. The Raaps assert, and are not contradicted by the
Waltzes, that condemnee, Raaps’ predecessor in title, testified that he intended
“some day to try to get right of way from the Waltz’s [sic].” [brief at p. 4].
However, he never took any action in that regard, and there is no evidence that the
Commonwealth contemplated any such remedy or, more to the point, that any such
contemplation by the parties affected the compensation paid for the taking. The
Raaps’ suggestion that it should be presumed that the Department of
Transportation expected the Act to be used is simply inviting acceptance of
speculation in the place of evidence. Moreover, the Raaps’ delay of six years
between their purchase of the property and filing this action hardly amounts to
“reasonable promptitude.”
               Nonetheless, the Raaps argue that public purpose should be found in
Section 204 of the Eminent Domain Code, 26 Pa. C.S. § 204,5 which was enacted


   5
       Section 204 of the Eminent Domain Code states, in pertinent part:
        (a) Prohibition.--Except as set forth in subsection (b), the exercise by any
              condemnor of the power of eminent domain to take private property in order
              to use it for private enterprise is prohibited.
        (b) Exception.--Subsection (a) does not apply if any of the following apply:
                                                   ***
                (9) The 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
(Footnote continued on the next page . . .)
                                               4
as part of the 2006 amendments to the Code. That provision generally prohibits a
condemnor from taking private property for use by a private enterprise. However,
and critical to the Raaps’ argument, an exception to this prohibition allows for the
taking of property by eminent domain if doing so will provide access to a public
thoroughfare for a property that has been landlocked as a result of the use of
eminent domain. 26 Pa C.S. § 204(b)(9). While, as the Raaps note, the O’Reilly
action was filed before these amendments, the argument that this provision
establishes the General Assembly’s view that access to landlocked property is a
public benefit was made to the Supreme Court in O’Reilly II. Although mentioned
as an argument, see 5 A.3d at 255-56, it is not otherwise discussed, but obviously
was not found persuasive by a majority of the Court. Furthermore, this court in In
re Opening a Private Road (O’Reilly), 22 A.3d 291, 296 (Pa. Cmwlth. 2011)
[O’Reilly     III]   specifically     rejected       the   argument,    noting       that   while
Section 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 did not establish compliance with the more stringent “primary and
paramount” standard. See O’Reilly III.
              Finally, the Raaps note that subsequent to its remand decision in
O’Reilly, the Supreme Court has upheld the use of the Private Road Act for
opening landlocked private property.             In re Private Road in Speers Boro, II,
Washington County, 11 A.3d 902 (Pa. 2011). There, property zoned for heavy
industrial use was landlocked to the north, south, and west by other land and to the

(continued . . .)
                     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.


                                                 5
east by the Monongahela River. The trial court appointed a board of viewers,
which determined that opening a private road was necessary. An en banc panel of
this Court vacated and remanded, holding that the board of viewers should have
considered evidence regarding river access to the property. Our Supreme Court
affirmed this Court’s decision, holding that the Private Road Act requires the board
of viewers to consider all available means of access, including water. Id. at 906.
The question of public versus private purpose was not in issue, and was not
mentioned in either the grant of allocator or the body of the Court’s opinion. In a
footnote, the Court stated that, “because the issue [in O’Reilly] is distinct from this
matter, and our decision of this matter does not depend on O’Reilly, we will not
consider it further.” Id. at 905 n.4. Accordingly, we cannot infer from the decision
in Speers Boro any retreat from the principles announced in O’Reilly II, which the
trial court faithfully applied.
              Accordingly, we must affirm.




                                          6
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


In Re: Tax Parcel 27-309-216          :
                                      :
Scott and Sandra Raap,                :
                  Appellants          :
                                      :
            v.                        :   No. 975 C.D. 2012
                                      :
Stephen and Kathy Waltz               :


PER CURIAM                      ORDER


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


In Re: Tax Parcel 27-309-216             :
                                         :
Scott and Sandra Raap,                   :
                          Appellants     :
                                         :
             v.                          :     No. 975 C.D. 2012
                                         :     Argued: November 13, 2013
Stephen and Kathy Waltz                  :



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



In Re: Tax Parcel 27-309-216              :
                                          :
Scott and Sandra Raap,                    :
                          Appellants      :
                                          :
             v.                           :   No. 975 C.D. 2012
                                          :
Stephen and Kathy Waltz                   :   Argued: November 13, 2013



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


In Re: Tax Parcel 27-309-216       :
                                   :
Scott and Sandra Raap,             :
                        Appellants :
                                   :
            v.                     : No. 975 C.D. 2012
                                   : Argued: November 13, 2013
Stephen and Kathy Waltz            :


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 Judges Leadbetter and Leavitt join in this
concurring opinion.
