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 cases 1 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 excep tions to a board of view

r eport 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 P rivate 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 constructio n 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 norther n border of the

p roperty fronts on a public road, and there is a house on the northern, Venango

County

, portion of the p roperty. In or about 1970, the Commonwealth constructed

Interstate 80 across th e Butler County portion of the p roperty, rendering the

s outhern half of the p roperty landlocked

. The southern, landlocked portion of the

p roperty is unimproved woodland.

In 1993, Groner purch ased his p roperty for $36,000. Groner’s primary

intended use of the p roperty was as a dwelling in the northern, portion of the

p roperty with public road access. At the time Groner purchased his pr operty, the

southern half had been landlocked by Interstate 80 for over 20 years.

Appellees David E. and Edna Mae Kasmoch own the land tha t borders

the west side of Groner’s p roperty. The Kas moch p roperty is almost entirely

woodland. The Kasmochs purchased their p roperty 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 p roperty. IMM acquired its properties between3

198 5 and 199 3 and uses them for events showing how the mountain men of the

early 1800s lived.

On March 20 , 2009, Groner filed a p etition in the Court of Common

Pleas of Venango County seeking a p rivate road across the Kasmoch p roperty and

property owned by Ronald E. Downs, Lois E. Downs, a/k/ a Lois E. Ra pman and

Chad E. Downs

. Because the southern, landlocke d 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, Bla ise

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 p roperty. Groner testified that prior to 2008, he

asked the Kasmochs for p ermissio n to cross the Kasmoch p roperty to remove

timber from the southern landlocked portion of his p roperty on only two occasions,

in approximately 2000 and 2005, and that on those two occas ions they gave him

permission. No testimony or other evidence was introd uced that Groner ever

sought continuous access to the landlocked portion of his p roperty 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 a ccess by the

Kasmochs.

3 The Downs and Giacchinos did not participate in either the hear ings below or this appeal.4 The board of view issued a report finding that the private road should

traverse the Kasmoch p roperty. The Kasmochs filed exceptions to the report

contesting the location of the private road. Subsequently , the Kasmochs filed

suppl emental 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 th e

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 t he

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

p roperty was considered by him in his purchase of the p roperty or affected the

price that he paid when he purchased the p roperty.

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 p roperty 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’R eilly II , and reaffirmed the findings of its first report.

The Kasmochs filed exceptions to the Second Board of View Report, asserting that5

the Private Road Act was unconstitutional and that Groner could not prevail in his

private road action because it w as 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 Seco nd 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 i n 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 cour t’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 whethe r 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 re mote 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 p roperty. There was , in addition,

no evi dence 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’Reill y ) , 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 not hing7

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 unti l 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 Ro ad ( O'Reilly ) , No. 520 C.D. 2013 , I concur only in the result reached by

the court o n 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. 201 2

:

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 BRIGAN CE 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 R e: 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

, JudgeIN 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, Ju dge

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.