[J-100-2018] [MO: Mundy, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
IN RE: PETITION OF BURTON R. : No. 9 MAP 2018
ADAMS AND JOANNE M. ADAMS, HIS :
WIFE : Appeal from the Order of the
: Commonwealth Court dated
: September 21, 2017 at No. 863 CD
APPEAL OF: WILLIAM DITTMAR AND : 2016 Affirming the Order of the
JAMES M. CORL : Sullivan County Court of Common
: Pleas, Civil Division, dated April 6,
: 2016 at No. 2013-CV-90.
:
: ARGUED: December 5, 2018
CONCURRING OPINION
JUSTICE WECHT DECIDED: July 17, 2019
I concur in the result. The Majority reverses on the basis that the Adamses’ future
intended use of the property is irrelevant to determining necessity under the Private
Roads Act.1 I hesitate to conclude that such evidence is categorically immaterial to the
inquiry. Instead, I would reverse the Commonwealth Court’s order on the ground that no
public purpose exists for opening the private road used by the Chesapeake Corporation
(“Chesapeake roadway”) in order to provide the Adamses access to the northern portion
of their property.
In In re Opening Private Road for Benefit of O’Reilly, 5 A.3d 246 (Pa. 2010),
responding to a constitutional challenge to the Act, this Court concluded that “a physical
1 36 P.S. §§ 2731-2891 (“the Act”). Under the Act, the owner of a landlocked
property is permitted to petition the Court of Common Pleas for the appointment of a
Board of View to evaluate the necessity of a private road to connect the property with the
nearest public thoroughfare. See id. § 2731. “If it shall appear by the report of viewers
to the court directing the view, that such road is necessary, the said court shall direct what
breadth the road so reported shall be opened. . . .” Id. § 2732 (emphasis added).
invasion and permanent occupation of private property, such as that which would be
accomplished by the creation of a private road under the Act, is a taking.” Id. at 257.
“Absent a valid exercise of the power of eminent domain,” we explained:
it 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.
Id. (quoting Phila. Clay Co. v. York Clay Co., 88 A. 487, 488 (Pa. 1913)). Proceeding
under eminent domain principles, this Court emphasized that the Constitutions of the
United States and Pennsylvania mandate that private property may be taken only for a
public purpose.2 Indeed, the “public must be the primary and paramount beneficiary of
the taking.” Id. at 258 (emphasis added); see Middletown Twp. v. Lands of Stone, 939
A.2d 331, 338 (Pa. 2007) (emphasizing that the public purpose must be “real and
fundamental, not post-hoc or pre-textual”).
The O’Reilly Court acknowledged that there is an “indirect benefit” to the public in
opening a road for a private property owner because “otherwise inaccessible swaths of
land in Pennsylvania would remain fallow and unproductive, whether to farm, timber or
log for residences, making that land virtually worthless and not contributing to commerce
or the tax base of this Commonwealth.” O’Reilly, 5 A.3d at 258. However, this Court
rejected the sufficiency of such an “indirect benefit” to sustain the constitutionality of
2 U.S. CONST. amend. V (“[N]or shall private property be taken for public use, without
just compensation.”); PA. CONST. art. 1, § 10 (“[N]or shall private property be taken or
applied to public use, without authority of law and without just compensation being first
made or secured.”).
[J-100-2018] [MO: Mundy, J.] - 2
takings under the Act without a determination that the “public is the primary and
paramount beneficiary.” Id. at 258.3
In the case before us, it is clear that opening the Chesapeake roadway to the
Adamses primarily serves their interests. Any benefits to the public are tenuous and
incidental, at best. Before the Board of View, Mr. Adams testified that he sought an
opening of a private road in order to reach a portion of his property for the purpose of
“build[ing] a house or a cabin on the corner where it has a good view.” N.T., 7/24/2015,
at 22. On cross-examination, when Mr. Adams was asked if the “need for access . . . is
so that you may construct a single family residential home on your land overlooking the
valley below,” Mr. Adams responded, “That’s accurate. . . .” N.T., 7/24/2015, at 32. The
Board of View recognized as much when it concluded that the Adamses “should be
granted the requested access over and upon [Corl’s] land for the stated purpose of
constructing and accessing a seasonal cabin. . . .” Board of View Report, 8/31/2015, at
10. Based upon these admissions and the Board’s findings, it seems clear that the “true
purpose” of opening the Chesapeake roadway to the Adamses was to benefit the
Adamses.
At different points in the proceedings below, the Adamses invoked two separate
public purposes in order to justify opening the Chesapeake roadway. Neither of these
established that “the public is the primary and paramount beneficiary.” See O’Reilly, 5
A.3d at 258. The Adamses first claimed that the Chesapeake roadway serves a public
purpose by transporting and supplying natural gas to the public. Mr. Adams testified that
3 The O’Reilly Court stopped short of declaring the Act unconstitutional. However,
the circumstances under which the opening of a private road would be constitutionally
permissible under the Act appear tightly circumscribed. Indeed, on remand in O’Reilly,
one judge posited that this Court’s decision in O’Reilly “for all intents and purposes
rendered the Act constitutionally unenforceable.” In re O’Reilly, 100 A.3d 689, 698 (Pa.
Cmwlth. 2014) (Leadbetter, J., concurring).
[J-100-2018] [MO: Mundy, J.] - 3
the Chesapeake roadway is “used constantly by Chesapeake to access the gas pad
which is . . . providing gas to the general public through a pipeline.” N.T., 7/24/2015, at
10. I agree with Judge Hearthway’s conclusion below that Chesapeake’s use of the
roadway is “irrelevant and cannot, as a matter of law, support a finding of public benefit.”
See In re Adams, 170 A.3d at 600 (Hearthway, J., dissenting). As a matter of law, the
sole inquiry is whether opening the Chesapeake roadway to the Adamses will benefit the
public. Opening the Chesapeake roadway to the Adamses would not advance the public
purpose of transferring and supplying natural gas, an enterprise that had been ongoing
for approximately two years before the Adamses sought to open the private road.4
The Adamses next invoked the public purpose of allowing the public to hunt on
their property. Mr. Adams testified that, on December 15, 2014, he entered into a
“contract with the Pennsylvania Game Commission under the Safety Zone Program to
allow . . . the general public to hunt” on his property. N.T., 7/24/2015, at 19-20. I do not
mean to foreclose the possibility that, under certain circumstances, opening a private road
to allow for recreational hunting may be considered a public purpose. But such a
proposed use must not be “post-hoc or pre-textual.” See Middletown Twp., 939 A.2d at
338. The Adamses did not enroll their property with the Game Commission until twenty-
two months after they filed their petition to open the Chesapeake roadway. Only after
Corl filed exceptions to the Board of View’s initial decision did the Adamses advance this
alleged public purpose. The timing of the Adamses’ enrollment of their property with the
Game Commission, coupled with the admissions made by Mr. Adams before the Board
of View, compel my conclusion that allowing hunters onto the property was not the real
or fundamental purpose supporting the opening. It was a post hoc justification, a pretext.
4 Mr. Adams testified that Chesapeake built the roadway five or six years before he
sought to open the private road, and that the gas pad had been operational for two years
preceding the instant litigation. N.T., 7/24/2015, at 12-13.
[J-100-2018] [MO: Mundy, J.] - 4
We are required to analyze openings under the Act pursuant to principles of
eminent domain. The Adamses, not the public, would be the primary and paramount
beneficiaries of the opening of the Chesapeake roadway. I would reverse the decision of
the Commonwealth Court on that basis.
Chief Justice Saylor and Justice Todd join this concurring opinion.
[J-100-2018] [MO: Mundy, J.] - 5