IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In re: Vacation of Raccoon :

Creek Road by Ordinance :

No. 2-2016 :

: No. 361 C.D. 2022

Appeal of: Artemis Chirgott : Submitted: May 12, 2023

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge 

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: September 6, 2023

Artemis Chirgott (Appellant) appeals from the Beaver County

Common Pleas Court’s (trial court) March 17, 2022 order affirming the Board of 

Viewers’ (Board) decision.1 There are three issues before this Court: (1) whether 

Appellant is entitled to recover the damages she claimed as a result of the Center 

Township (Township) Board of Supervisors’ (Appellee) decision to vacate the 

portion of Raccoon Creek Road (Road) that traversed her 200-acre property located 

in the Township (Property); (2) whether Appellee’s decision to vacate the Road 

constituted a de facto taking where Appellant was not deprived of the beneficial use 

and enjoyment of her Property, and was not otherwise subjected to Property loss; 

and (3) whether the Board erred in rendering its evidentiary rulings during the

hearing.2

1 Although the order was dated March 17, 2022, it was filed on March 21, 2022 and entered 

on the docket on March 22, 2022.

2

In her Statement of Questions Involved, Appellant presented 11 issues for this Court’s 

review: (1) whether the trial court erred by relying on the Board’s Report, which gave rise to issues 
2

The Road is the only apparent means of public access to the Property. 

The only improvements on the Property are a residential rental dwelling and 

outbuildings.3 The Road, as it approaches the Property, is narrow and in poor 

condition with a steep hill on one side and a drop-off on the other. The Road is in 

similar condition as it continues through Appellant’s Property. The Road requires 

periodic maintenance, is subject to landslides from time to time, and can 

accommodate only one lane of traffic. Due to the Road’s physical location and 

condition, it would be extremely difficult for Appellant to develop the Property 

beyond its present use or for agricultural purposes. Electricity is the only available 

utility on the Property, and there is no public water or sewer service. 

On October 3, 2016, Appellee Adopted Ordinance No. 2016 

(Ordinance), which vacated a portion of the Road. The vacated portion begins where 

of erroneous determinations; (2) whether the trial court erred when exhibits submitted to the Board 

were accepted into evidence but ignored by the Board and the trial court in their determinations; 

(3) whether the trial court and the Board erred when they stated in Paragraph 30 of the Board’s 

Report that no evidence of fees was offered; (4) whether the Board erred by failing to recognize 

the mandates of the Eminent Domain Code (Code), 26 Pa.C.S. §§ 101-1106; (5) whether the Board 

erred in its award of damages by failing to allocate damages and by failing to include damages that 

were admitted and offered into evidence; (6) whether the Board’s decision was erroneous, arbitrary 

and capricious because it contained various errors and denied a trial by jury as demanded; (7) 

whether the Pennsylvania Rules of Evidence were misapplied by the Board and the trial court, and 

not more relaxed as permitted in the less formal Board hearing; (8) whether the Board and the trial 

court gave any weight to the 27 exhibits offered and received into evidence; (9) whether the trial 

court mistakenly indicated that the proceedings were not dealing with a de facto condemnation, 

subject to the mandates of the Code; (10) whether the two cases relied upon by the trial court 

(Benner v. Silvis, 950 A.2d 990 (Pa. Super. 2008), and In re Vacation of Hain Avenue, Swatara

Township, Lebanon County, 420 A.2d 760 (Pa. Cmwlth. 1980),) are factually similar to the instant 

case and whether they address damages under Section 715 of the Code, 26 Pa.C.S. § 715; and (11) 

whether the case should have been ordered to proceed to a jury determination as demanded and 

required by Section 518(3) the Code, 26 Pa.C.S. § 518(3). See Appellant Br. at 5-6. Because 

Appellee’s Counterstatement of the Questions Involved encompass the pertinent issues before this 

Court, see Appellee Br. at 1-2, and the issues presented in Appellant’s brief are subsumed in those 

issues, this Court will address those issues accordingly. 

3 An outbuilding is “a building (such as a stable or woodshed) separate from but accessory 

to a main house.” https://www.meriam-webster.com/dictionary/outbuilduing (last visited Sept. 5,

2023). 
3

the Road enters the Property and extends through the Property for approximately 

one-half of a mile. Appellant filed a Petition for Review (Petition) and Exceptions

in the trial court challenging Appellee’s adoption of the Ordinance. The trial court 

held a status conference on August 21, 2017, which the Township’s counsel,

Appellant’s counsel, and the Board’s Chairman W. John Rackley, Esquire, attended. 

During the status conference the parties’ counsel and Board Chairman agreed that 

the Board would limit its decision to the issue of damages and not consider the 

Ordinance’s validity. 

On September 21, 2017, the Board viewed the Property after giving 

proper notice to the Township, Appellant, and their respective counsel, the latter of 

whom attended the view. On April 29 and April 30, 2021, after proper notice was 

given to the aforesaid counsel, the Board held a hearing. On September 7, 2021, the 

Board awarded Appellant $209,500.00 in compensatory damages, plus delay 

damages from October 3, 2016. On October 5, 2021, Appellant filed Objections to 

the Board’s Report and Appeal from the Board’s Damages. On March 17, 2022, the 

trial court affirmed the Board’s award of damages. Appellant appealed to this 

Court.4

Initially,

[t]he [Board] is “an independent tribunal” and “fact[-

]finder.” Soska v. Bishop, 19 A.3d 1181, 1187 (Pa. 

Cmwlth. 2011) (citing Mandracchia v. Stoney Creek Real 

Est[.] Corp[.], . . . 576 A.2d 1181, 1182-83 ([Pa. Cmwlth.] 

1990)). It is for the [B]oard, as the fact[-]finder to assess 

4

“In reviewing a [Board’s] decision, ‘[a]ppellate review is limited to ascertaining the 

validity of the [B]oard’s jurisdiction, the regularity of proceedings, questions of law[,] and whether 

the [B]oard abused its discretion.’” In re Vacation of a Portion of Paper Mill Rd., Newtown Twp., 

294 A.3d 975, 982 n.6 (Pa. Cmwlth. 2023) (quoting In re Adams, 212 A.3d 1004, 1012 (Pa. 2019) 

(citations omitted).
4

the weight and credibility of the evidence. “Because the 

[B]oard is the fact[-]finder, its judgments, including its 

determinations as to credibility of witnesses and weight of 

the evidence, [are] beyond the scope of appellate review.” 

Soska, 19 A.3d at 1187 (citing In re Rural Route 

Neighbors, 960 A.2d 856, 860[-]62 (Pa. Cmwlth. 2008)). 

“Although the [B]oard’s findings are subject to review and 

may be set aside, its authority will not be infringed upon 

by a court[] substituting its judgment for that of the 

viewers.” Driver v. Temple, . . . 543 A.2d 134, 136-37 

([Pa. Super.] 1988)[.] . . . Further, it is well settled that the 

fact[-]finder may “draw all reasonable inferences from the 

evidence presented.” Rural Route Neighbors, 960 A.2d at 

861.

In re Vacation of a Portion of Paper Mill Rd., Newtown Twp., 294 A.3d 975, 984 

(Pa. Cmwlth. 2023) (citations and footnote omitted). As the fact-finder, the Board 

“is required to make crucial findings of fact on all essential issues necessary for 

review by the [trial court] and this Court, but is not required to address specifically 

each bit of evidence offered.” Pistella v. Workmen’s Comp. Appeal Bd. (Samson 

Buick Body Shop), 633 A.2d 230 (Pa. Cmwlth. 1993) (citation omitted); see also 

Paper Mill Rd., 294 A.3d at 985-86 ; Stout v. Unemployment Comp. Bd. of Rev. (Pa. 

Cmwlth. No. 426 C.D. 2021, filed Mar. 21, 2022), slip op. at 20.

5

Appellant argues:

The Board . . . erred and apparently picked a number out 

of the air as damages (it didn’t appear to be allocated in 

any way to damages claimed by [Appellant]), and further 

erred by failing to include the lost rental admitted to by the

Township [(]when they [sic] discontinued agreed [sic] 

upon rental reimbursement). An example of the casual 

treatment of [Appellant] is the fact that the testimony of

her appraiser and the amount paid to her were ignored by 

the [Board] and the [trial c]ourt. . . . 

5 This Court’s unreported memorandum opinions may be cited “for [their] persuasive 

value, but not as a binding precedent.” Section 414(a) of the Commonwealth Court’s Internal 

Operating Procedures, 210 Pa. Code § 69.414(a). 
5

Appellant Br. at 23. 

Section 715 of the Eminent Domain Code (Code) provides: “Whenever 

a public road, street or highway is vacated, the affected owners may recover damages 

for any injuries sustained, even though no land is actually taken.” 26 Pa.C.S. § 715. 

Section 709 of the Code specifies:

Where proceedings are instituted by a condemnee under 

[S]ection 502(c) [of the Code, 26 Pa.C.S. § 502(c)] 

(relating to petition for appointment of viewers), a 

judgment awarding compensation to the condemnee for 

the taking of property shall include reimbursement of 

reasonable appraisal, attorney and engineering fees and 

other costs and expenses actually incurred.

26 Pa.C.S. § 709. 

Despite the Board referring to: Appellee’s appraiser’s testimony that in 

his opinion, the Property’s fair market value (FMV) before the Road’s vacation (prevacation FMV) was $421,850.00, and the FMV thereafter and as affected thereby 

(post-vacation FMV) was $426,300.00;

6 Appellant’s appraiser’s testimony that the 

Property’s pre-vacation FMV was $699,500.00, and post-vacation FMV was $0.00; 

Appellant’s appraiser’s written report stating that the pre-vacation FMV was 

$470,500.00, and post-vacation FMV was $47,050.00;

7

and Appellant’s additional 

evidence of further damages in the amount of $7,752,690.00,

8

the Board awarded

Appellant, “after consideration of the evidence submitted and after a careful 

view of the Property,” $209,500.00 in compensatory damages, plus delay damages 

from October 3, 2016. Original Record (O.R.) at 76 (emphasis added). 

6

See Original Record (O.R.) at 75. Because the Original Record pages are not numbered, 

the page numbers herein reflect electronic pagination.

7

See O.R. at 74.

8

See O.R. at 75.
6

The Board’s only explanation for the amount it awarded Appellant was: 

[] The Board [did] not believe that the damages itemized 

in Paragraph 23[9]are recoverable in this case, but 

assuming that they are, no weight is given to the evidence 

presented in support thereof due to the hearsay nature of 

the written exhibits, the speculative aspect of the damages 

alleged and [Appellant’s brother’s10] lack of competency 

to testify as to the alleged damages. 

[] Section 715 of the . . . Code . . . provides for “damages 

for any injuries sustained” where a road has been vacated. 

Section 709 of the Code states that where no declaration 

of taking is filed, condemnee shall be reimbursed for

reasonable appraisal, attorney and engineering fees shall 

be awarded.

O.R. at 76. The Board added that Appellant “offered no evidence regarding fees 

incurred for appraisals, [or] attorney or engineering fees.” Id. While the Board 

explained its rejection of certain evidence, which was within its province to do, and 

specified that certain evidence was not submitted, it did not specify the basis for its 

damage award. 

This Court’s review of the Board’s damage award includes a 

determination as to whether the Board abused its discretion. See Paper Mill Rd. 

[A]n abuse of discretion is established when findings of 

fact are not supported by substantial evidence. Substantial 

evidence is “such relevant evidence as a reasonable mind 

might accept as adequate to support a conclusion.” Valley 

View Civic Ass[’n] v. Zoning [Bd.] of Adjustment, . . . 462 

A.2d 637, 640 ([Pa.] 1983). “[A]n abuse of discretion may 

not be found merely because the appellate court might 

have reached a different conclusion, but requires a 

showing of manifest unreasonableness, or partiality, 

9 Paragraph 23 referenced Appellee’s appraiser. This Court suspects the Board

inadvertently referenced that paragraph. 

10 Appellant’s brother testified regarding a portion of Appellant’s alleged additional 

damages.
7

prejudice, bias, or ill-will, or such lack of support as to be 

clearly erroneous.” Paden [v. Baker Concrete Constr., 

Inc.], 658 A.2d [341], 343 [(Pa. 1995)]. 

Paper Mill Rd., 294 A.3d at 985 (citation omitted).11 

Because the Board failed to explain what evidence it relied upon in 

determining the amount of Appellant’s damages, this Court is unable to determine 

whether the Board abused its discretion in making said determination. Accordingly, 

this Court vacates the trial court’s order and remands the matter to the trial court to 

remand to the Board to issue a new report setting forth the basis for its award of 

$209,500.00 in compensatory damages to Appellant.12

For all of the above reasons, the trial court’s order is vacated, and the 

matter is remanded to the trial court to remand to the Board.

_________________________________

ANNE E. COVEY, Judge

11 Here, the trial court summarily determined that “the [Board] did not abuse [its] discretion 

when awarding the amount of damages to [Appellant].” Trial Ct. Mar. 17, 2022 Order at 5-6.

12 Given this Court’s disposition of the first issue, this Court does not reach the remaining 

issues.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In re: Vacation of Raccoon :

Creek Road by Ordinance :

No. 2-2016 :

: No. 361 C.D. 2022

Appeal of: Artemis Chirgott :

O R D E R

AND NOW, this 6

th day of September, 2023, the Beaver County 

Common Pleas Court’s (trial court) order dated March 17, 2022, and entered March 

22, 2022, is VACATED, and the matter is REMANDED to the trial court to 

REMAND to the Board of Viewers to issue a new Report consistent with this 

Opinion.

Jurisdiction is relinquished.

_________________________________

ANNE E. COVEY, Judge