HomeMy WebLinkAbout2011-3702
ROBERT J. KASPER,
: IN THE COURT OF COMMON PLEAS OF
JEANETTE E. KASPER,
: CUMBERLAND COUNTY, PENNSYLVANIA
Petitioners,
:
: NO. 2011-3702
v.
:
: CIVIL ACTION - LAW
WILLIAM G. HAYCOCK, and
:
CLOVER A. HAYCOCK, and
:
NANCY E. KELSO,
:
Respondents.
IN RE: MOTION OF HAYCOCKS FOR
SUMMARY JUDGMENT OR PARTIAL SUMMARY JUDGMENT
BEFORE HESS, P.J., GUIDO, J. and PECK, J.
OPINION and ORDER
Before the Court is the Motion of Respondents for Summary Judgment or Partial
Summary Judgment. (Motion of Haycocks for Summary Judgment or Partial Summary
Judgment, filed Dec. 9, 2011). The underlying action involves the request by Petitioners that this
court appoint a Board of View with a direction to conduct an analysis of the properties owned by
the parties to this action and to open a private road in order to grant access to an otherwise
landlocked portion of property owned by Petitioners. (Amended Petition for Appointment of a
Board of View, filed Dec. 16, 2011). For the reasons that follow, Respondents’ Motion for
Summary Judgment or Partial Summary Judgment will be denied.
The facts of record established thus far are brief and may be summarized as follows.
Petitioners are Robert J. Kasper and Jeanette E. Kasper, adult individuals who reside at 3806
Conestoga Road, Camp Hill, Cumberland County, Pennsylvania 17011. (Amended Petition, ¶
1). Respondents are William G. Haycock and Clover A. Haycock, adult individuals who reside
at and own real property located at 76 Goodhart Road, Shippensburg, Cumberland County,
Pennsylvania 17257. (Amended Petition, ¶ 3). There are two properties involved in this dispute;
one is owned by Petitioners, located at 437 Walnut Bottom Road, Shippensburg, Cumberland
County, Pennsylvania 17257, and the other is the aforementioned property owned by
Respondents, located on Goodhart Road. (Amended Petition, ¶ 2). The properties are adjacent
to each other, with the northern portion of Petitioners’ property bordering the southern portion of
Respondents’ property. (Deposition of Robert J. Kasper, 7, Nov. 21, 2011, filed Dec. 9, 2011
(hereinafter “Kasper Deposition, __”)). Both of the properties involved consist of large amounts
of farm land. (Affidavit of William G. Haycock and Clover A Haycock, ¶¶ 4, filed Dec. 9, 2011
(hereinafter “Haycock Affidavit, ¶ __”)).
At some time prior to 1963, a portion of Petitioners’ farm land was involuntarily
condemned for the purpose the construction of Interstate 81. (Amended Petition, ¶ 5). The
installation of the roadway resulted in the bisection of Petitioners’ property, with part of
Petitioners’ land lying to the north of the Interstate, and a majority of the property lying to the
south. (Amended Petition, ¶ 6). As a result, the portion of Petitioners’ farm that was to the
north of Interstate 81, and that bordered the southern portion of Respondents’ land, became
landlocked. (Amended Petition, ¶ 8). The portion of Petitioners’ property situated to the south of
the Interstate continued to have access from Walnut Bottom Road. (Amended Petition, ¶ 7).
On December 16, 2011, Petitioners Robert J. Kasper and Jeanette E. Kasper filed an
Amended Petition for Appointment of a Board of View, pursuant to 36 P.S. § 2731, et seq.,
requesting this court to appoint and direct a Board of View to conduct an analysis of the
properties owned by the parties and to open a private road granting access to the landlocked
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portion of Petitioners’ property. (Amended Petition for Appointment of a Board of View, filed
Dec. 16, 2011). Specifically, Petitioners seek access by way of the installation of a road or other
right-of-way across the Respondents’ land in order to obtain access to Goodhart Road.
(Amended Petition, ¶ 11). Respondents have filed an answer to the underlying Amended
Petition, and the record has been supplemented with the deposition of Robert J. Kasper, filed
December 9, 2011, and the affidavit of William G. Haycock and Clover A Haycock, filed
December 9, 2011.
On December 12, 2011, Respondents filed the instant Motion for Summary Judgment or
Partial Summary Judgment. The Motion requests, first, that the underlying Petition of the
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Kaspers be dismissed as being violative of the 5 Amendment to the United States Constitution
and Article I, Section 1 and Article I, Section 10 of the Pennsylvania Constitution, and, second,
in the alternative, that partial summary judgment be entered “restricting any private
condemnation to a right-of-way that would be no more than 16 feet in width and limited to
access for the purposes of agriculture and tending the existing advertising billboard on the
landlocked lands.” (Motion of Haycocks for Summary Judgment or Partial Summary Judgment,
filed Dec. 9, 2011).
Pursuant to Rule 1035.2 of the Pennsylvania Rules of Civil Procedure, the court may
grant summary judgment after the relevant pleadings are closed and whenever there is no
genuine issue of any material fact as to a necessary element of the cause of action or defense that
could be established by any additional discovery or expert report, or if, after the completion of
discovery relevant to the motion, including the production of expert reports, an adverse party
who will bear the burden of proof at trial has failed to produce evidence of facts essential to the
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cause of action or defense, which in a jury trial would require the issues to be submitted to a jury.
Pa. R. Civ. P. 1035.2(1); Estate of Borst v. Edward Stover Sr. Testamentary Trust, 2011 PA
Super 222, 30 A.3d 1207. Summary judgment shall be granted whenever “the material facts are
undisputed,” or the facts are insufficient “to make out a prima facie cause of action or defense.”
McCarthy v. Dan Lepore & Sons Co., 724 A.2d 938, 940 (Pa. Super. Ct. 1998); Pa. R. Civ. P.
1035.2(1). We view the record in the light most favorable to the non-moving party, and all
doubts as to the existence of a genuine issue of material fact must be resolved against the moving
party. Abrams v. Pneumo Abex Corp., 602 Pa. 627, 634, 981 A.2d 198, 203 (2009).
Furthermore, summary judgment is proper when “the uncontroverted allegations in the
pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits
demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to
judgment as a matter of law.” Reliance Ins. Co. v. IRPC, Inc., 2006 PA Super 150, ¶ 8, 904 A.2d
912, 915.
For the purpose of opposing a motion for summary judgment, a nonmoving party may
not simply rely on controverted allegations contained within the pleadings, but must “set forth
specific facts by way of affidavit, or in some other way as provided by Pa.R.C.P. 1035(b),
demonstrating that a genuine issue of material fact exists.” Banks v. Trustees of University of
Pennsylvania, 446 Pa. Super. 99, 103, 666 A.2d 329, 331 (1995) (citing Ressler v. Jones Motor
Company, 337 Pa. Super. 602, 487 A.2d 424 (1985)). Finally, a trial court’s entry of summary
judgment will not be overturned absent an error of law or a clear abuse of discretion. McCain v.
Pennbank, 379 Pa. Super. 313, 318, 549 A.2d 1311, 1313 (1988).
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First enacted in 1836, the Private Road Act empowers a private citizen with the
statutorily granted privilege to condemn the land of a neighbor in order to permit access from a
landlocked parcel to a public road. Act of June 13, 1836, P.L. 551 (as amended 36 P.S. §§ 2731-
2891) (hereinafter the “P.R.A.” or the “Act”). The Act provides that, upon petition, a board of
viewers “shall be appointed to conduct a view and report whether a private road is necessary for
the benefit of the landlocked parcel.” Benner v. Silvis, 2008 PA Super 103, ¶ 10, 950 A.2d 990,
993 (citing 36 P.S. § 2731). Upon a finding by the board of view that a private road is necessary,
“… the proceedings in such case shall be entered on record. . .and thenceforth such road shall be
deemed and taken to be a lawful private road.” Id. (citing 36 P.S. § 2732). Thereafter, the Act
provides the manner in which the damages sustained by the servient landowner are to be paid;
specifically, the Act provides that compensation for these types of takings is to be determined in
accordance with the procedures and measurements of damages as set forth in the Eminent
Domain Code, 26 Pa.C.S.A. §§ 101-1106, which requires just compensation to be paid for the
injury or destruction caused to the servient land. 36 P.S. § 2736.
While the parties disagree over its application to the facts herein, both are in agreement
that the case of In re: Opening a Private Road for the Benefit of O’Reilly, 607 Pa. 280, 5 A.3d
246 (2010), is the most recent controlling precedent applicable to the instant dispute. In
O’Reilly, the Pennsylvania Supreme Court reviewed a determination by the Commonwealth
Court that the P.R.A. did not effect an unconstitutional taking of private property and also
clarified the constitutional standard by which an action under the Private Road Act must be
examined. O’Reilly, 607 Pa. at 284, 5 A.3d at 248. Initially, it is important to note that the Court
did not find the Private Road Act to be per se unconstitutional. Rather, the Court explained that,
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while there may have been disagreement in the past, the creation of a private road under the Act
is, in fact, a taking in the constitutional sense, and, in order to withstand constitutional scrutiny,
the taking must satisfy certain constitutional mandates. O’Reilly, 607 Pa. at 298, 5 A.3d at 257.
The Court held that the taking which occurs from the creation of a private road is effected by
way of eminent domain, and, therefore, must be evaluated as such. Id. The Court explained that
absent a valid exercise of the power of eminent domain,
[I]t is not within the power of the Legislature to invest either an individual or a
corporation with the right to take the property of a private owner for the private
use of some other individual or corporation, even if a method is provided for
ascertaining the damages and paying what shall be deemed just compensation.
O’Reilly, 607 Pa. at 299, 5 A.3d at 257 (quoting Phila. Clay Co. v. York Clay Co., 241 Pa. 305,
309–10, 88 A. 487, 488 (1913)).
In explaining the constitutional standard to be applied to actions arising under the Private
Road Act, the Court emphasized that the Constitutions of the United States and the
Commonwealth of Pennsylvania “mandate that private property can only be taken to serve a
public purpose.” O’Reilly, 607 Pa. at 299, 5 A.3d at 258. In order to satisfy the public purpose
standard, “the public must be the primary and paramount beneficiary of the taking.” Id. (citing
Middletown Township v. Lands of Stone, 595 Pa. 607, 617, 939 A.2d 331, 337 (2007)). The
mere presence of some incidental or indirect public benefit will not suffice; rather, a finding that
the public is the primary and paramount beneficiary of the taking is required. O’Reilly, 607 Pa.
at 299-300, 5 A.3d at 258. Because the record in the O’Reilly case was bereft of detail, the
Supreme Court remanded to the Commonwealth Court to consider whether the specific taking at
issue therein was constitutional under the standard identified by the Court. In so remanding, the
Supreme Court stated, in dicta, the following:
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Perhaps the most compelling assertions advanced by Appellee lie in the purported
interrelation between the Commonwealth's initial exercise of its eminent domain
power to construct an interstate highway—which apparently isolated Appellee's
property from access to public roads—and Appellee's subsequent invocation of
the PRA to restore access. In light of the course this appeal has taken, however,
potentially relevant details (for example, whether Appellee's use of the PRA to
restore access to the property was contemplated at the time the Commonwealth
removed it, and whether Appellee acted with reasonable promptitude such that the
two takings reasonably might be regarded as an interconnected course of events)
are not well developed before this Court. Accordingly, we will return the matter
to the Commonwealth Court to consider this and any remaining matters which
have been raised and preserved for judicial review and which may bear on
whether the public is fairly regarded as the primary and paramount beneficiary.
. . . .
We have concluded that the court of original appellate jurisdiction has the
responsibility, in the first instance, to review Appellants' preserved and colorable
arguments, and any decision to affirm the taking of their property should be
closely reasoned. In our view, the dissent's position that there are no difficulties
here—because Pocopson Road[,16 Pa. 15 (1851)] baldly said there are none—is
an unsustainable one.
O’Reilly, 607 Pa. at 300-01, 5 A.3d at 258-59.
On remand, and faced with the above question posed to it by the Supreme Court, the
Commonwealth Court found as follows:
In examining the record, however, we are convinced that we do not have enough
information to determine whether the public would be the primary and paramount
beneficiary of the taking in this case. There are a number of reasons for this: this
case is before us on appeal from preliminary objections, so there is no factual
record; the parties' pleadings did not specifically address the standard that our
Supreme Court has now made clear applies; and there is nothing even in the
pleadings relating to the issue of the highway condemnation raised by our
Supreme Court.
In re: Opening a Private Road for Benefit of O'Reilly, 22 A.3d 291, 297 (Pa. Commw. Ct. 2011).
As a result, the Commonwealth Court remanded the case to the court of common pleas in
order that a hearing might be held, and the court and instructed the trial court to make findings of
fact considering the constitutional standard enunciated by the Supreme Court. Id. The
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Commonwealth Court stated that at the hearing, “the court should consider not only evidence
presented by the parties about the alleged highway taking that caused the parcel at issue to
become landlocked, but also any other evidence relevant to determining who the primary and
paramount beneficiary of the proposed taking would be.” Id.
Applying the foregoing, we find that the entry of summary judgment in favor of
Respondents, in this case, would be a premature determination that the creation of a private road
granting access to Petitioners’ landlocked parcel is not for the primary and paramount benefit of
the public. Instead, the question of who is the primary and paramount beneficiary of the would-
be road is a significant and genuine issue of material fact that remains to be determined. The
material facts are not undisputed, as required by Pa.R.Civ.P. 1035.2, and the uncontroverted
allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and
submitted affidavits do not demonstrate that Respondents are entitled to judgment as a matter of
law. As our Supreme Court and Commonwealth Court have indicated, the constitutionality of a
taking under the Private Road Act is properly determined after a hearing wherein the court
considers all relevant evidence presented by parties in an attempt to determine who would be the
primary and paramount beneficiary of the proposed taking.
In their Motion for Summary Judgment or Partial Summary Judgment, Respondents
assert that “where the landlocked portion of the Kasper farm became landlocked nearly fifty
years ago, the opening of the private road over the Haycock lands would operate to the primary
benefit of Kasper, as opposed to the general public, in violation of the United States and
Pennsylvania Constitutions.” (Motion of Haycocks for Summary Judgment or Partial Summary
Judgment, ¶ 18). The respondents argue, in other words, that the shear length of time that this
8
parcel has remained landlocked leads to the inevitable conclusion that to now open a private road
granting access to the land would be primarily for the benefit of the landowner and not the
general public. We decline to summarily take that leap. Instead, we read the dicta in the
Supreme Court’s O’Reilly opinion, pertaining to details that may be relevant in making a
1
determination of the primary and paramount beneficiary, to be merely guidance as to what may
be relevant in making such a finding. We do not believe that the mere passage of time, on its
own, is a proper basis for the entry of summary judgment against a petitioner.
In the alternative, Respondents’ Motion requests that partial summary judgment be
entered “restricting any private condemnation to a right-of-way that would be no more than 16
feet in width and limited to access for the purposes of agriculture and tending the existing
advertising billboard on the landlocked lands.” (Motion of Haycocks for Summary Judgment or
Partial Summary Judgment, ¶ 35). Respondents contend that Petitioners’ desire to privately
condemn a right-of-way fifty feet in width is unreasonable as such a wide road would permit
access for reasons that are outside of the historic use of the landlocked parcel and would cause
too great a burden on the servient land.
The Private Road Act clearly permits the opening of a private road only upon a finding
by the board of view that such a road is necessary. See Benner, 2008 PA Super 103, ¶ 10, 950
A.2d at 993 (citing 36 P.S. § 2731). The P.R.A. grants to the board broad authority to determine,
1
In remanding the case to the Commonwealth Court, the Supreme Court stated its reasoning for doing so as follows:
In light of the course this appeal has taken, however, potentially relevant details (for example,
whether Appellee's use of the PRA to restore access to the property was contemplated at the time
the Commonwealth removed it, and whether Appellee acted with reasonable promptitude such that
the two takings reasonably might be regarded as an interconnected course of events) are not well
developed before this Court. Accordingly, we will return the matter to the Commonwealth Court
to consider this and any remaining matters which have been raised and preserved for judicial
review and which may bear on whether the public is fairly regarded as the primary and paramount
beneficiary.
O’Reilly, 607 Pa. at 300-01, 5 A.3d at 258-59.
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first, whether the road is necessary, and, if so, where the road is to be located. Mandracchia v.
Stoney Creek Real Estate Corp., 133 Pa.Cmwlth. 510, 514, 576 A.2d 1181, 1182 (Pa. Commw.
Ct. 1990). In delineating the duties of the viewers, the Act provides as follows:
The persons appointed as aforesaid, shall view such ground, and if they shall
agree that there is occasion for a road, they shall proceed to lay out the same,
having respect for the shortest distance, and the best ground for a road, and in
such manner as shall do the least injury to private property, and also be as far as
practicable, agreeable to the desire of the petitioners.
36 P.S. §1785.
Despite this grant of authority and deference to the board, the Private Road Act does not
give unrestricted authority to the board in determining the where such a road should be and how
it is to be laid out. The Act clearly and unambiguously provides that “the breadth of a private
road shall not in any case exceed twenty-five feet. . . .” 36 P.S. § 1901 (emphasis added). This
provision places a specific and significant limitation on the Board of View, and it is not within
the power of the appointed board to waive it, regardless of the circumstances presented. Benner,
2008 PA Super 103, ¶ 15, 950 A.2d at 994-95 (citing Fengfish v. Dallmyer, 434 Pa.Super. 250,
642 A.2d 1117, 1119-20 (1994) (“The power of a board of view to take private land for the use
of another person exists only by virtue of statute, and the board’s exercise of that power is
limited strictly according to the terms of the statute creating the power.”).
Applying the foregoing, Respondents’ request that partial summary judgment be entered
restricting any private condemnation to a right-of-way that would be no more than sixteen feet in
width and limited to access for the purposes of agriculture and tending the existing advertising
billboard on the landlocked lands is premature. Summary judgment is properly entered when the
uncontroverted allegations in the pleadings, depositions, answers to interrogatories, admissions
10
of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and
that the moving party is entitled to judgment as a matter of law. In this case, a board of view has
not yet been appointed and clearly there have been no findings made even as to the necessity of
the creation of a private road. If a board is appointed, however, it is within the authority of such
a board to make recommendations regarding the appropriate width of the road, and any findings
will thereafter be examined in light of the statutory limitations described above.
For these reasons, the following order will be entered:
ORDER
AND NOW, this day of March, 2012, upon consideration of Respondents’ Motion
for Summary Judgment or Partial Summary Judgment, the responses filed thereto, and after oral
argument, the Motion of Haycocks for Summary Judgment or Partial Summary Judgment is
DENIED.
BY THE COURT,
___________________________
Kevin A. Hess, P.J.
Seth T. Mosebey, Esquire
For the Petitioners
Wayne F. Shade, Esquire
For Respondents Haycocks
Nancy E. Kelso
74 Kline Road
Shippensburg, PA 17257
Robert Frey, Esquire
Cumberland County Land Preservation Board
11
ROBERT J. KASPER,
: IN THE COURT OF COMMON PLEAS OF
JEANETTE E. KASPER,
: CUMBERLAND COUNTY, PENNSYLVANIA
Petitioners,
:
: NO. 2011-3702
v.
:
: CIVIL ACTION - LAW
WILLIAM G. HAYCOCK, and
:
CLOVER A. HAYCOCK, and
:
NANCY E. KELSO,
:
Respondents.
IN RE: MOTION OF HAYCOCKS FOR
SUMMARY JUDGMENT OR PARTIAL SUMMARY JUDGMENT
BEFORE HESS, P.J., GUIDO, J. and PECK, J.
ORDER
AND NOW, this day of March, 2012, upon consideration of Respondents’ Motion
for Summary Judgment or Partial Summary Judgment, the responses filed thereto, and after oral
argument, the Motion of Haycocks for Summary Judgment or Partial Summary Judgment is
DENIED.
BY THE COURT,
___________________________
Kevin A. Hess, P.J.
Seth T. Mosebey, Esquire
For the Petitioners
Wayne F. Shade, Esquire
For Respondents Haycocks
Nancy E. Kelso
Robert Frey, Esquire
Cumberland County Land Preservation Board