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HomeMy WebLinkAbout2005-2084 Civil IN RE: LAYING OUT AND OPENING A PRIVATE ROAD IN EAST HAMPDEN TOWNSHIP PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA GNANACHANDRA M. CHINNAH, Petitioner CIVIL ACTION-LAW v. JAMES E. and BETSY L. EICHELBERGER, Husband and Wife, PETER 1. and LYNETTE M. MATHEWS, Husband and Wife, DEBRA 1. BLOSNICH, MARK H. and CAROL 1. SHAPIRO, Husband and Wife, RONALD R. and DEBORAH 1. SZP AK, Husband and Wife, STEVEN R. and YUN S. MBEN, Husband and Wife, and WENDY A HYSER, Respondent No. 05-2084 CIVIL TERM IN RE: REPORT OF BOARD OF VIEW; APPEAL OF PETITIONER FROM REPORT OF BOARD OF VIEW, FILED BY PETITIONER GNANACHANDRA M. CHINNIAH; MOTION TO QUASH APPEAL AND FOR ENTRY OF A DECREE NISI CONFIRMING THE REPORT OF VIEWERS FILED OCTOBER 10, 2006, FILED BY RESPONDENTS PETER J. AND LYNETTE M. MATTHEWS; RESPONDENTS JAMES E. AND BETSY EICHELBERGER'S MOTION SEEKING ISSUANCE OF A DECREE NISI CONFIRMING THE REPORT OF THE BOARD OF VIEWERS BEFORE OLER, J. OPINION and ORDER OF COURT OLER, 1., April 9, 2007 Petitioner, Gnanachandra M. Chinniah, has filed an appeal from a Report of Board of View recommending a denial of Petitioner's request for the opening and laying of a private road. Respondents Peter 1. and Lynette M. Matthews have filed a motion requesting the entry of a decree nisi confirming the Board's report and the quashal of Petitioner's appeal as premature. Respondents James E. and Betsy Eichelberger have filed a separate motion requesting the entry of a decree nisi confirming the Board's report. Petitioner has opposed these motions. F or the reasons stated in this opinion, the following actions will be taken by the Court: a decree nisi will be issued confirming the Report of Board of View and denying Petitioner's petition to layout and open a private road and, if no exceptions are filed within 30 days of the entry of this decree nisi, the decree nisi will be deemed automatically, and without further order of court, to be a final decree; the Appeal of Petitioner from Report of Board of View filed, by Petitioner Gnanachandra M. Chinniah, will be quashed as premature; the Motion To Quash Appeal and for Entry of a Decree Nisi Confirming the Report of Viewers Filed October 10, 2006, filed by Peter 1. and Lynette M. Matthews, will be granted; and Respondents James E. and Betsy Eichelberger's Motion Seeking Issuance of a Decree Nisi Confirming the Report of the Board of Viewers will be granted. STATEMENT OF FACTS According to the Report of the Board of View, Petitioner purchased Lot 168 on a plan known as the Hampden Hearth Subdivision, in Hampden Township, Cumberland County, Pennsylvania, at a tax sale in December of 2003, and, in April of 2005, sought appointment of a board of view to determine if the necessity existed for the laying out of a private road to access the lot. 1 Respondents in this action were named because of their ownership of properties in the vicinity of the property of Petitioner? On September 26, 2006, the Board of View filed a report 1 Report of the Board of View, Including Findings of Fact and Conclusions of Law, filed October 10,2006 (hereinafter Board Report~. 2Id.. 2 concluding that Petitioner's request to layout a private road was not meritorious, because under the subdivision plan Petitioner's lot was to be annexed to an adjacent lot which had access to a public road.3 Petitioner then filed an appeal to this Court from the Report on November 3, 2006, and Respondents filed the aforesaid motions suggesting that Petitioner's appeal was premature in the absence of a conditional confirmation by the Court of the Board's report. DISCUSSION The Private Road Act4 outlines the procedure for private parties to petition the court to determine the necessity for the opening and laying of a road across another's property. The act is very detailed as to who shall maintain the road once it is open,5 who shall pay damages sustained in the opening of the road,6 the amount of time to be afforded to open the road,7 and the consequences of a failure to open the road within the allotted time.8 The only section of the act which deals with appeals is 36 P.S. 9 2762, which relates to the filing of appeals in regard to the amount of damages assessed. Although the statute is less than specific as to the procedural issue raised by Respondents' motions in response to Petitioner's appeal, the Pennsylvania Commonwealth Court has addressed the issue as follows: [I]n contrast to an eminent domain case, in a private road proceeding, the Board's report, itself, has no effect unless and until Common Pleas enters an order confirming it. Accordingly, we hold that in a private 3 See generally Board Report. 4 Act ofJune 13,1836, P.L. 551 ~ 11, as amended, 36 P.S. ~ 2731, et seq. (2007 Supp.). 5 Act of June 13, 1836, P.L. 551 ~ 15,36 P.S. ~ 2735 (2007 Supp.). 6 Act of June 13, 1836, P.L. 551 ~ 16, as amended, 36 P.S. ~ 2736 (2007 Supp.). 7 Act of May 12, 1925, P.L. 586 ~ 1,36 P.S. ~ 2737 (2007 Supp.). 8 Act of May 12, 1925, P.L. 586 ~ 2, 36 P.S. ~ 2738 (2007 Supp.). 3 road case, the "order appealed from" is the Court's order confirming nisi the Board's report; thus, a party wishing to challenge the report must file exceptions regarding the Board's finding of necessity and/or an appeal of the Board's assessment of damages, with Common Pleas within thirty days after the date on which the Court's order confirming nisi the Board's report is entered on the docket. It follows that after confirmation nisi of a Board's report, Common Pleas must wait at least thirty days before entering a final order so as to allow parties the appropriate time in which to appeal. 9 Thus, before Petitioner can challenge in this Court the Report of the Board of View, a decree nisi must be entered. Accordingly, the following order will be entered: ORDER OF COURT AND NOW, this 9th day of April, 2007, upon consideration of (a) the Report of Board of View, (b) the Appeal of Petitioner from Report of Board of View, filed by Petitioner Gnanachandra M. Chinniah, (c) the Motion To Quash Appeal and for Entry of a Decree Nisi Confirming the Report of Viewers Filed October 10, 2006, filed by Respondents Peter 1. and Lynette M. Matthews, and (d) Respondents James E. and Betsy Eichelberger's Motion Seeking Issuance of a Decree Nisi Confirming the Report of the Board of Viewers, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. A decree nisi is hereby issued confirming the Report of Board of View and denying Petitioner's petition to lay out and open a private road; if no exceptions are filed within 30 days of the entry of this decree nisi, the decree nisi will be deemed automatically, and without further order of court, to be a final decree; 9 In re Brinker, 683 A.2d 966, 971 (Pa.Cmwlth.,1996). 4 2. The Appeal of Petitioner from Report of Board of View, filed by Petitioner Gnanachandra M. Chinniah, is quashed as premature; 3. The Motion To Quash Appeal and for Entry of a Decree Nisi Confirming the Report of Viewers Filed October 10, 2006, filed by Peter 1. and Lynette M. Matthews, is granted; and 4. Respondents James E. and Betsy Eichelberger's Motion Seeking Issuance of a Decree Nisi Confirming the Report of the Board of Viewers is granted. BY THE COURT s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Diane D. Radcliff, Esq. 3448 Trindle Road Camp Hill, PA 17011 Courtesy Copy Michael 1. Cassidy, Esq. JOHSON, DUFFIE, STEWART & WEIDNER 301 Market Street Lemoyne, P A 17043 Attorney for Respondents James E. and Betsy Eichelberger Kathleen Misturak-Gingrich, Esq. DALEY, ZUCKER & GINGRICH 1029 Scenery Drive Harrisburg, P A 17109 Attorney for Respondents Peter J and Lynette M Matthews 5 Steven Rand Yun S. Maben 6111 Locust Lane Mechanicsburg, P A 17050 Respondents Pro Se Ronald R and Deborah 1. Szpak 6109 Locust Lane Mechanicsburg, P A 17050 Respondents Pro Se Craig A. Diehl, Esq. 3464 Trindle Road Camp Hill, PA 17011 Attorney for Respondents Mark H. and Carol J Shapiro Debra 1. Blosnich 6105 Locust Lane Mechanicsburg, P A 17050 Respondent Pro Se Wendy A. Hyser 6103 Locust Lane Mechanicsburg, P A 17050 Respondent Pro Se Douglas G. Miller, Esq. IRWIN & MCKNIGHT 50 West Pomfret Street Carlisle, P A 17013 Attorney for Petitioner Gnanachandra M Chinniah William A. Duncan, Esq. Chairman, Board of View 1 Irvine Row Carlisle, P A 17013 Chairman, Board of View James Sheya 433 Mooreland Avenue Carlisle, P A 17013 Member, Board of View 6 R Fred Hefelfinger 247 West Baltimore Street Carlisle, Pa 17013 Member, Board of View 7 8 10