[J-10A-2024 and J-10B-2024] [MO: Dougherty, J.] 

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

GARY D. WOLFE AND MARY O. WOLFE, 

HUSBAND AND WIFE,

 Appellants

 v. 

READING BLUE MOUNTAIN AND 

NORTHERN RAILROAD COMPANY,

Appellees

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No. 73 MAP 2023

Appeal from the Order of the 

Commonwealth Court at No. 649 CD 

2022, entered on November 14, 

2022, Reversing and Remanding the 

Order of the Berks County Court of 

Common Pleas, Civil Division, at No. 

22-03762, entered on June 8, 2022.

ARGUED: April 9, 2024

IN RE: CONDEMNATION OF LANDS OF 

GARY D. WOLFE AND MARY O. WOLFE 

POTTSVILLE PIKE, MUHLENBERG 

TOWNSHIP

APPEAL OF: GARY D. WOLFE AND MARY 

O. WOLFE, HUSBAND AND WIFE

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No. 74 MAP 2023

Appeal from the Order of the 

Commonwealth Court at No. 722 CD 

2022, entered on November 14, 

2022, Reversing and Remanding the 

Order of the Berks County Court of 

Common Pleas, Civil Division, at No. 

22-03847, entered on June 8, 2022.

ARGUED: April 9, 2024

CONCURRING OPINION

JUSTICE MUNDY DECIDED: August 20, 2024

I agree the county court’s order should be reinstated, although I differ with certain 

aspects of the majority’s analysis, much of which proceeds from the premise that this 

Court’s previous railroad decisions are materially distinguishable from the present case. 

I believe those decisions are largely on point, but I would conclude that, on the present 

record, the condemnor failed to demonstrate that its goals cannot be accomplished by 

locating the rail crossing south of the subject property. 
[J-10A-2024 and J-10B-2024] [MO: Dougherty, J.] - 2

As developed by the majority: the Business Corporation Law gives public utilities

– defined to include railroads subject to PUC regulation – eminent domain powers for 

purposes including transporting property by railroad; any such taking by a railroad is 

governed by the Eminent Domain Code (the Code); and nothing in the Property Rights 

Protection Act limits that authority. See Majority Op at 16-17 (discussing statutory 

provisions and associated official comments). Such powers are, of course, subject to the 

public-use predicate which is constitutionally imposed. Further, under established 

Pennsylvania law, when a railroad files a declaration of taking, title vests in the railroad 

“on the date of the filing,” 26 Pa.C.S. § 302(a)(2), and a rebuttable presumption arises 

that the taking is for an inherently public purpose. See Majority Op. at 22 (citing cases).

It is undisputed that the taking in this matter was accomplished to connect an 

asphalt company, Russell Standard, with the overall rail network. While acknowledging 

decisions from a century ago deeming such individual connections to embody an 

inherently public use in light of the public’s need for the items in question, see C.O. Struse 

v. Reading Co., 153 A. 350, 352 (Pa. 1931) (rail connection to Sears & Roebuck 

warehouse storing retail mail-order goods was for a public use); Pioneer Coal v. 

Cherrytree & D.R. Co., 116 A. 45, 48 (Pa. 1922) (rail spur to connect with a single coal 

mine was for a public use), the majority distinguishes the present controversy on multiple

grounds. Most notably, the majority states that Struse and Pioneer Coal were decided in 

an earlier era when the American railway network was deemed inherently beneficial to 

the public – which the majority suggests is no longer true, see Majority Op. at 22; see 

also id. at 19 (indicating that, unlike today, the economy was “much more heavily 

dependent on railroads”) – and it reasons that those cases also utilized a more lenient

standard to evaluate the constitutional sufficiency of the claimed public benefit. I have 

difficulty with this reasoning.
[J-10A-2024 and J-10B-2024] [MO: Dougherty, J.] - 3

Initially, Struse and Pioneer Coal, both unanimous decisions by this Court, enjoy 

precedential status, and the majority does not assess whether an exception to the 

doctrine of stare decisis is presently implicated. In particular, the majority does not claim

the prior cases were wrongly decided or that any special justification exists for this Court 

to cease following them. See Commonwealth v. Alexander, 243 A.3d 177, 196 (Pa. 2020)

(“To reverse a decision, we demand a special justification, over and above the belief that 

the precedent was wrongly decided.”) (quoting Allen v. Cooper, 589 U.S. 248, 259 

(2020)). Insofar as the majority can be understood to proffer that the rail network is less 

important to the public now than it was when those cases were decided, we lack an 

adequate evidentiary record to make such a finding. While certainly we may take judicial 

notice that more people and goods are transported by automobile and aircraft now than 

they were at that time, it does not follow that, in our more complex society with almost

three times as many people, rail transport is substantially less important. Further, the old 

cases were based on the concept that the entire rail network served the public, and the 

whole network necessarily includes each individual branch – including the branch to be 

constructed via the condemnation then at issue. There is no indication in the present 

case that that is any less true today than it was when Struse and Pioneer Coal were 

decided.1

1 The majority implies the legal analysis in these older cases may not apply presently 

because it “was undergirded by the belief that construction and maintenance of railroad 

branches and spurs automatically served a ‘public use’ because of the infrastructure it 

created.” Majority Op. at 19. However, the majority cites no authority suggesting that is 

any less true today. Notably, railroads are still public utilities under Pennsylvania law,

see 66 Pa.C.S. § 102, and as late as 2006 when the General Assembly passed the 

Property Rights Protection Act it exempted railroads from the restrictions imposed. See

26 Pa.C.S. § 204(b). In my view, the legislative body is better positioned than this Court 

to pronounce when society has changed to the point that our rail infrastructure can no 

longer automatically be deemed to serve a public use. See Villani v. Seibert, 159 A.3d 

478, 492 (Pa. 2016) (acknowledging the General Assembly’s “superior resources and 

institutional prerogative in making social policy judgments upon a developed analysis”).
[J-10A-2024 and J-10B-2024] [MO: Dougherty, J.] - 4

Second, I am skeptical to the extent the majority suggests the standard for 

evaluating the constitutional validity of a taking is substantively stricter today than it was 

then. Initially, it bears noting that any such standard represents a judicial interpretation 

of the text in our organic law requiring that all takings be for a “public use.” U.S. CONST. 

amend. V; PA. CONST. art. I, § 10; PA. CONST. art. X, § 4. If the standard really did change 

materially in the post-Struse timeframe, one would expect that some judicial opinion 

abrogating the prior standard, establishing a new one, and explaining why the prior cases 

were being overruled, would have been issued; yet the majority cites none and I am 

unaware of any.

The formulation in use today, that the public must be the “primary and paramount 

beneficiary” of the proposed use of the subject property, utilizes a phrase that originated 

in Price v. Philadelphia Parking Authority, 221 A.2d 138 (Pa. 1966), see Majority Op. at 

20, but there is little reason to believe that in Price we set out to establish a new test. For 

one thing, and as the majority acknowledges, Price was not even a takings case, see id., 

and although In re Bruce Avenue, 266 A.2d 96 (Pa. 1970), which was an eminent domain 

dispute, quoted Price’s formulation, it did so without any elaboration and without implying 

that such phraseology reflected a break from the past. See id. at 99. Further, Bruce 

Avenue also continued to use the prior standard by specifying that, so long as the public 

good is enhanced, it is immaterial that some private interest may also be benefited. See 

id. (quoting Belovsky v. Redevelopment Auth. of Phila., 54 A.2d 277, 283 (Pa. 1947)). 

This is the same essential concept that emerges from the older cases, where, for 

example, we acknowledged that a rail siding primarily benefits the public even though 
[J-10A-2024 and J-10B-2024] [MO: Dougherty, J.] - 5

there may be some incidental private benefit.2 To my mind, the “primary and paramount” 

language is simply a more modern label given to the same concept.

The majority’s reliance on Middletown Twp. v. Lands of Stone, 939 A.2d 331 (Pa. 

2007), and In re Opening of Private Road for Benefit of O’Reilly, 5 A.3d 246, 258 (Pa. 

2010), also appears misplaced. In Lands of Stone, a farm was condemned ostensibly for 

recreation, a valid public use, but we found recreation to be a post-hoc pretext, as we 

discerned the “true purpose” of the taking was to preserve open space, which was not 

within the township’s eminent domain powers. There is no issue of a pretextual taking in 

the present case. Separately, O’Reilly found that the indirect benefit to the public of

opening a private road to connect a landlocked property with a public road did not mean 

that the public was the primary beneficiary. But that is distinct from a railway’s connection 

via rail siding to a business supplying goods that benefit the public. Here, it is clear 

Russell Standard cannot possibly be the sole beneficiary of the proposed rail link. There 

are necessarily other entities such as businesses or government agencies on the other 

end that receive those products – and ultimately, as with the coal products at issue in 

Pioneer Coal and the Sears & Roebuck products at issue in Struse and Pioneer Coal, the 

public benefits in numerous ways from the supply of asphalt to the market.3

2 See Stoneboro & Chautauqua Lake Ice Co. v. Lake Shore & Mich. S. Ry. Co., 86 A. 87, 

88 (Pa. 1913) (explaining that a rail siding is “impressed with a public use” which is not 

diminished by the circumstance that a private entity may have helped fund its construction 

in order to benefit from it); see also Struse, 153 A. at 351-52 (noting the proposed rail 

connection would benefit not only Sears but “a large percentage of the public,” and stating 

a “public use” arises where the taking will directly “contribute to the general public 

welfare”).

3 Indeed, there are many socially-beneficial uses of asphalt, such as for roadways, 

driveways, tunnels, bridges, airport runways and taxiways, roofing, playgrounds, bicycle 

paths, running tracks, tennis courts, basketball courts, parking lots, barn floors, 

greenhouse floors, pipe coating, pipe joint fillers, ports, landfill caps, dam construction, 

retention pond lining, flood control and soil erosion uses, and building construction such 

as floorings. See Becky Dunlavey, What are the Uses for Asphalt (Aug. 5, 2019), 

(continued...)
[J-10A-2024 and J-10B-2024] [MO: Dougherty, J.] - 6 

It may be true that Russell has previously shipped its products by truck, but it is 

evidently more cost effective to do so by rail, otherwise Russell would not be seeking to 

convert to rail transportation. And while there is an insufficient record to gauge just how 

much more cost effective it is, in the end societal resources are conserved when 

businesses convert to more cost-effective measures. As well, Reading Blue Mountain’s

amici notably argue there are substantial benefits relating to the environment, roadway 

wear-and-tear, and roadway safety for the traveling public, when businesses convert from 

truck to rail transportation.

4 Although, again, we lack an evidentiary record needed to 

quantify such improvements, my point is that such improvements exist and such a record 

could potentially be created in a future case – meaning it is ill advised to pronounce as a 

matter of law that the railway network is not as important to the economy as it was in a 

previous era.

With all of that said, I ultimately reach the same result as the majority. Although

Reading’s declaration of taking gave rise as a matter of law to a rebuttable presumption 

that the condemnation was for a public purpose, see Bruce Avenue, 266 A.2d at 99, I 

view this case as factually distinguishable from previous disputes in that the Wolfes 

rebutted that presumption by showing that an alternate rail crossing would serve the same 

available at https://www.uniquepavingmaterials.com/what-are-the-uses-of-asphalt/ (last 

accessed July 26, 2024).

4 See, e.g., Brief for Amici CSX Transportation, Inc., Norfolk Southern Railway Co., and 

Consolidated Rail Corp., at 8-9 (“Together [railroads and short lines] form a connected 

interstate transportation network facilitating the movement of freight and goods vital to the 

United States and global economies. By reducing the number of large tractor trailers on 

America’s streets, railroads also benefit the environment by contributing to the reduction 

of greenhouse gas emissions while promoting safety by decreasing highway 

congestion.”).
[J-10A-2024 and J-10B-2024] [MO: Dougherty, J.] - 7

purpose, i.e., connecting Russell to the overall rail network.5 Consequently, and as the 

trial court found, the choice to locate the siding specifically on the Wolfes’ property rather 

than at the alternative site was made primarily to serve the Reading’s and Russell’s 

private interest in saving time and money. See Wolfe v. Reading Blue Mountain & 

Northern R.R. Co., No. 22-3762, slip op. at 15-17 (C.P. Berks July 27, 2022) (adding that 

Russell also wished to avoid having stationary rail cars blocking access to its property, as 

would sometimes occur if the crossing were placed further south). The burden then 

shifted back to Reading to demonstrate why that alternative crossing would be infeasible.6 

Because Reading failed to make such a showing, I support the trial court’s ultimate ruling 

that the taking was not for a public use.

Accordingly, I respectfully concur in the result reached by the majority.

5 The hearing transcript reflects that the rail line, including its crossing of Route 61, could 

be placed sixty feet to the south of the proposed location and connect directly to Russell’s 

business instead of traversing a portion of the Wolfes’ land. See N.T., 6/2/2022, at 80, 

94; Majority Op. at 5-6. Although this would require additional steps such as moving a 

fire hydrant, encasing utility lines in concrete, and seeking regulatory approval, there was 

no explanation at the hearing as to why those steps could not reasonably be taken.

6 This type of burden shifting is well known in the law, and it naturally applies to a case 

like this one. Such schemes are used or proposed elsewhere in takings law, such as with 

governmental public-necessity takings alleged to be infeasible, see Note, This Land is My 

Land: The Need for a Feasibility Test in Evaluation of Takings for Public Necessity, 78 

CHI.-KENT L. REV. 1403, 1419 (2003), or takings claimed to reflect favoritism to private 

interests, see Note, When the Legislature Robs Peter to Pay Paul: Pretextual Takings 

and Goldstein v. Pataki, 30 MISS. C.L. REV. 87, 109-10 (2011) (borrowing from Supreme 

Court employment discrimination law).