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 cases1argued 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.
2

(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
3

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. 
4

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 
5

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.
6

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 
7

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.
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 O R D E R

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.