IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Russell D. Dysert, Karen K. Dysert, :
Joseph Klick, Jayne Klick, Michael :
Macklin and Lori Macklin :
:
v. : No. 38 C.D. 2021
: ARGUED: October 18, 2021
Robinson Township, Washington :
County :
:
Appeal of: Russell D. Dysert, Karen :
K. Dysert, Michael Macklin and Lori :
Macklin :
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: December 22, 2021
Appellants Russell D. Dysert, Karen K. Dysert, Michael Macklin, and Lori
Macklin appeal from the Court of Common Pleas of Washington County’s
(Common Pleas) December 22, 2020 order,1 through which, in relevant part,
Common Pleas sustained Appellee Robinson Township, Washington County’s
(Township) preliminary objections to a petition for appointment of a board of
viewers (Petition) filed by Appellants, Joseph Klick, and Jayne Klick (collectively,
Landowners), on the basis that the Petition was barred by the pertinent statute of
limitations.2 The Township has also filed an application to strike certain exhibits that
1
Common Pleas’ order is dated December 18, 2020, but was not mailed to the parties until
four days later.
2
The Klicks are not participating in this appeal.
are attached to Appellants’ brief (Application), in which it argues that those exhibits
are dehors the record from below and, therefore, should not be considered on appeal.
After thorough review, we grant the Application and affirm Common Pleas’
December 22, 2020 order.
I. Background
This marks the second time we have considered this matter, which has
returned to us after we remanded it in part to Common Pleas in March 2020, so that
Common Pleas could hold a hearing and make certain factual determinations. As
previously recounted by our Court in Dysert v. Robinson Township, Washington
County (Pa. Cmwlth., No. 260 C.D. 2019, filed Mar. 9, 2020) (Dysert I),
Landowners and the Township [have been] involved in
two separate actions before [C]ommon [P]leas relating to
the ownership and status of Rita Drive, the disputed
property: a declaratory judgment action and [an] eminent
domain action.
A. Declaratory Judgment Action
On June 11, 2018, the Township filed with [C]ommon
[P]leas a complaint for declaratory judgment against
Landowners (Declaratory Judgment Action). In its
Declaratory Judgment Action, the Township asserted that
it has continuously maintained Rita Drive in excess of 21
years and sought an order declaring that Rita Drive is a
public road pursuant to Section 2307 of The Second Class
Township Code [(Township Code)].2 Section 2307(a)
provides:
[e]very road which has been used for public travel
and maintained and kept in repair by the township
for a period of at least twenty-one years is a public
road having a right-of-way of thirty-three feet even
though there is no public record of the laying out or
dedication for public use of the road.
53 P.S. § 67307(a). The Township alleged that Rita Drive
is, and always has been, a public road that the Township
has maintained, despite Landowners’ recent
2
representations to the Township otherwise. Declaratory
Judgment Action Complaint. Compl. ¶¶4, 16. [Through
the Declaratory Judgment Action, t]he Township sought .
. . a judgment “confirming that Rita Drive is a public road
in accordance with the . . . Township Code, 53 P.S. §
67307.” Id., Wherefore Clause.
2
Act of May 1, 1933, P.L. 103, as amended, added by
Section 1 of the Act of November 9, 1995, P.L. 350, 53 P.S.
§ 67307.
B. Petition
While the Declaratory Judgment Action was pending,
Landowners filed the Petition on August 6, 2018, [asking]
[C]ommon [P]leas to appoint a board of viewers to
determine whether the Township had effectuated a de
facto taking of Rita Drive and, if so, to determine just
compensation. Landowners averred in the Petition as
follows. The Dyserts own land that Rita Drive bifurcates,
the Macklins own property north of Rita Drive and rely
upon Rita Drive for access to a public right-of-way, and
the Klicks also own property to the north of Rita Drive.
Petition ¶¶1, 3, 6-7, 9-10. There is no public record of
dedicating Rita Drive for public use, there was no formal
vote for such purpose, and there has never been an exercise
of de jure power of eminent domain with regard to Rita
Drive. Rather, “Rita Drive is a dead-end cart[ ]path[,] the
sole function of which is to provide exclusive access to a
public right-of-way” for the surrounding properties. Id.
¶17. Rita Drive has never been opened to or used by the
public, which divested the Township of any right it may
have had to use Rita Drive as a public road. Rita Drive is
currently 11-feet-wide. However, Section 2307
necessitates that the road be 33-feet-wide if it is declared
a public road. Although the Township has alleged in its
Declaratory Judgment Action that it has acquired 33 feet
of land comprising Rita Drive, it has never filed a
declaration of taking or otherwise acquired title thereto.
Landowners further alleged as follows. The Township’s
“continuous use, expansion, and improvement” of Rita
Drive for “non-residential[] public purposes has destroyed
the use and enjoyment of all, or the portion of the alleged
33[-foot] right-of-way within and beyond the existing”
3
Rita Drive, which has resulted in injury and damages to
Landowners. Id. ¶31. The Township’s actions fall squarely
within its eminent domain power. Accordingly,
Landowners “seek just compensation for the period of July
1996 to July 2017 in which” the Township appropriated
Rita Drive as a public road, “in the event that [Common
Pleas] should determine [in the Declaratory Judgment
Action] that Rita Drive became a public road” pursuant to
Section 2307. Id. ¶37. Alternatively, if [C]ommon [P]leas
determines that Rita Drive is not a public road pursuant to
Section 2307, Landowners seek “just compensation
reflecting a taking in perpetuity . . . resulting from [the
Township’s] admitted confiscation of Rita Drive for
public use as the Township alleged in its Declaratory
Judgment Action. Id. ¶38. Therefore, Landowners [asked
C]ommon [P]leas [to] appoint a board of viewers to
determine “whether a de facto taking has occurred” and, if
so, what just compensation was due. Id., Wherefore
Clause (emphasis omitted). By order dated August 6,
2018, [C]ommon [P]leas appointed a board of viewers to
“view the premises and to ascertain and assess such
damages as [it] may find to have been caused to
[Landowners].” Reproduced Record (R.R.) at 14a.
C. The Township’s [Preliminary Objections]
The Township filed a motion to stay the Board of
Viewer[s] proceedings and subsequently filed its
[preliminary objections] on September 26, 2018, asserting
three separate grounds for objection to the Petition: (1)
pendency of a prior action; (2) demurrer or legal
insufficiency of the Petition; and (3) demurrer based upon
the statute of limitations. With regard to the pendency of a
prior action, the Township asserted that, pursuant to Rule
1028(a)(6) of the Pennsylvania Rules of Civil Procedure,
Pa. R.[Civ.]P.[]1028(a)(6), allowing [preliminary
objections] to be filed on the grounds of “pendency of a
prior action or agreement for alternative dispute
resolution,” the Petition should be dismissed because the
Declaratory Judgment Action then pending before
[C]ommon [P]leas3 would have a direct impact on the
relief Landowners seek in the Petition. The Township
further asserted that the Petition was legally insufficient
because Landowners did not allege sufficient facts of their
4
ownership interests or facts to establish a taking, as they
do not allege that they are fee simple owners of the land
upon which Rita Drive rests but aver that Rita Drive is
north of their land or “appears” to bifurcate it.
[Preliminary Objections] ¶ 17. Finally, the Township
argued that the Petition was legally insufficient because it
was filed after the statute of limitations had run. If the
Township’s actions could be considered a taking, the
Township asserted that the six-year statute of limitations
for a takings claim began to run on July 8, 1996, when the
Township entered onto portions of Rita Drive and paved
it. For the foregoing reasons, the Township asserted, the
Petition should be dismissed.
3
We take judicial notice that by Opinion and Order dated
December 3, 2019, [C]ommon [P]leas determined in the
Declaratory Judgment Action that all but a portion of Rita
Drive is a public road pursuant to Section 2307. See
Lycoming [Cnty.] v. Pa. [Lab. Rels.] Bd., 943 A.2d 333, 335
n.8 (Pa. Cmwlth. 2007) (a court can take judicial notice of
judgments and pleadings in other court proceedings,
particularly where the proceedings involve the same parties).
D. Common [P]leas’ Order
The parties briefed the [preliminary objections] and oral
argument was held. Upon consideration, [C]ommon
[P]leas entered the following Order:
1. [The Township’s preliminary objection] relating
to the pendency of a prior action is OVERRULED,
inasmuch as we believe Pa.
R.[Civ.]P.[]1028([a])(6) does not apply to a petition
brought under the Eminent Domain Code[4] for
appointment of viewers. Even if our view [was]
otherwise, we agree with [Landowners’] position
that the objection of the pendency of a prior action
is not applicable, as the same rights are not asserted
and the same relief is not sought in the two actions.
2. [The Township’s preliminary objection] relating
[to] the legal insufficiency of [Landowners’]
pleading, i.e., that there has been no exercise of
eminent domain and that no taking has been averred
is OVERRULED. We agree with [Landowners']
5
position that averments of the Petition are sufficient
to state a cause of action for a de[]facto taking.
3. [The Township’s preliminary objection] relating
to the statute of limitations is OVERRULED.
Order. The Township appealed and, at [C]ommon [P]leas’
direction, filed a statement of errors complained of on
appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b), Pa. R.A.P. 1925(b), asserting that
[C]ommon [P]leas erred in overruling the [preliminary
objections] and in ruling upon them at all prior to
conducting an evidentiary hearing. Common [P]leas
subsequently issued its Rule 1925(a) opinion[, in which it]
relied upon its reasoning in the Order to support its
determination as to the [preliminary objection] for the
pendency of a prior action. With regard to demurrer for
legal insufficiency, [C]ommon [P]leas explained that the
averments were sufficient to state a cause of action for a
de facto taking, acknowledging “that a hearing is
necessary so a judicial determination of whether a taking
actually occurred can be made.” Rule 1925(a) Opinion at
1-2 (citing Friedman v. City of [Phila.], 503 A.2d 1110
(Pa. Cmwlth. 1986)). Finally, with regard to the statute of
limitations, [C]ommon [P]leas stated that it agreed with
Landowners that the statute of limitations began to run in
June 2017 when the Township declared Rita Drive a
public road, “or at the latest, when [the Township] filed
the [D]eclaratory [J]udgment [A]ction.” Id. at 2.
4
26 Pa. C.S. §§ 101-1106.
Dysert I, slip op. at 2-7, 2020 WL 1130764, at *1-*3 (some punctuation omitted).
The Township appealed Common Pleas’ Order to our Court and we
subsequently affirmed the Order in part and vacated it in part. We concluded that
Common Pleas had properly overruled the Township’s pendency of a prior action
preliminary objection, but had erred by overruling the Township’s legal
insufficiency preliminary objection. Id. at 7-19, 2020 WL 1130764, at *3-*8.
Specifically, we noted that Common Pleas had never held the legally mandated
evidentiary hearing but had nevertheless determined that the Township had effected
6
a de facto taking of Rita Drive. Id. at 14-19, 2020 WL 1130764, at *6-*8. We also
concluded that Common Pleas had erred by overruling the Township’s statute of
limitations preliminary objection because, without an evidentiary hearing and
appropriate factual findings, it could not be said with certitude whether a de facto
taking had occurred or, assuming that it had, when the statute of limitations on
challenging that taking had begun to run. Id. at 19-21, 2020 WL 1130764, at *8-*9.
Accordingly, we affirmed Common Pleas’ Order as to the pendency of a prior action
preliminary objection, but vacated it as to the legal sufficiency and statute of
limitations preliminary objections, and remanded the matter to Common Pleas with
instructions that it hold an evidentiary hearing regarding those preliminary
objections. Id. at 21-22, 2020 WL 1130764, at *9.
Common Pleas then convened that hearing on July 22, 2020, during which the
parties collectively stipulated to use of the evidentiary record from the Declaratory
Judgment Action as the record for the Petition Action, in lieu of holding additional
hearings and creating an entirely new record before Common Pleas. Common Pleas
Op., 12/22/20, at 2. That same day, Appellants withdrew their post-trial motions in
the Declaratory Judgment Action, thereby giving up their ability to appeal Common
Pleas’ December 3, 2019 order and rendering it final. R.R. at 265a. On December
22, 2020, Common Pleas ruled that, based upon this jointly stipulated record, the
Township had effected a de facto taking of Rita Drive, but that Landowners had
waited too long to file their Petition challenging that taking. Common Pleas Op.,
12/22/20, at 2-4. Common Pleas came to this conclusion for two reasons. First,
Common Pleas credited the testimony of Gerald Runtas, who had been a road
supervisor for the Township between 1974 and 2005, and determined, on the basis
of his testimony, that Rita Drive had been treated as a public road starting in 1974.
7
Id. at 3. Second, Common Pleas held that Appellants were put on notice regarding
the public status of Rita Drive no later than 1997 and 1998, when the Dyserts and
Macklins first purchased their respective properties, as the deeds for their properties
described Rita Drive as a public road. Id. at 4. In light of these conclusions, Common
Pleas determined that Rita Drive had become a public road in 1995, pursuant to
Section 2307 of the Township Code, and that Appellants were consequently required
to challenge that de facto taking no later than an unspecified date in 2001, per 42 Pa.
C.S. § 5527(a)(2).3 As a result, Common Pleas overruled the Township’s legal
insufficiency preliminary objection, but sustained the Township’s statute of
limitations-based preliminary objection, and dismissed the Petition with prejudice
due to its lack of timeliness. Id. at 4-5.
Appellants subsequently appealed Common Pleas’ December 22, 2020 order
to our Court on January 15, 2021. Thereafter, Appellants submitted an appellate brief
to our Court, which, in addition to presenting their legal argument, contained three
attached exhibits that are described as follows: Appendix A (Trial Court Opinion
and Order); Appendix B (Township’s Comprehensive Plan and Resolution); and
Appendix C (Township’s Liquid Fuels Map). See Appellants’ Br. at ii, Apps. A-C.
On July 7, 2021, the Township filed its Application, in which it asserted that both
Appendix B and Appendix C should be stricken, in addition to all references thereto
in Appellants’ Brief, due to the fact that neither item had been part of the jointly
stipulated record that had been presented to, and considered by, Common Pleas.
Application at 1-3; see Township’s Br. at 21-26. Appellants responded in opposition
3
This law states: “[i]f the condemnor has not filed a declaration of taking, a petition for
the appointment of viewers for the assessment of damages under [the Eminent Domain Code, 26
Pa. C.S. §§ 101-1106,] must be filed within six years from the date on which the asserted taking,
injury or destruction of the property occurred or could reasonably have been discovered by the
condemnee.” 42 Pa. C.S. § 5527(a)(2).
8
to the Application on July 13, 2021; as such, both the appeal and the Application are
ready for our consideration.
II. Discussion
A. Application
First, we address the Township’s Application. To reiterate, the Township
argues that we should strike Appendix B and Appendix C, and all references made
by Appellants to those appendices in their brief, as these appendices were not
included in the jointly stipulated record presented to Common Pleas. Id. Appellants
do not dispute that those appendices are dehors the jointly stipulated record.
Nevertheless, they maintain that we should judicially notice them pursuant to
Section 6107(a) of the Judicial Code4 or Pa. R.E. 201,5 and consider them for
4
This law states that “[t]he ordinances of municipal corporations of this Commonwealth
shall be judicially noticed.” 42 Pa. C.S. § 6107(a).
5
This rule of evidence reads as follows:
(a) Scope. This rule governs judicial notice of an adjudicative fact
only, not a legislative fact.
(b) Kinds of Facts That May Be Judicially Noticed. The court may
judicially notice a fact that is not subject to reasonable dispute
because it:
(1) is generally known within the trial court’s territorial
jurisdiction; or
(2) can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.
(c) Taking Notice. The court:
(1) may take judicial notice on its own; or
(2) must take judicial notice if a party requests it and the
court is supplied with the necessary information.
(d) Timing. The court may take judicial notice at any stage of the
proceeding.
(e) Opportunity to Be Heard. On timely request, a party is entitled
to be heard on the propriety of taking judicial notice and the nature
(Footnote continued on next page…)
9
purposes of our disposition of this matter, as both are official government documents
that contain what can either be deemed legislative facts or facts beyond reasonable
dispute showing that the Township considered Rita Drive to be a private road.
Appellants’ Br. at 40-48; Appellants’ Response to Application ¶¶6-18. Appellants
further clarify that they
are not asserting these documents as a conclusive
determination of the truth of these official representations
that Rita Drive is a private road; to the contrary, the maps
[contained in the challenged appendices] could be legally
incorrect. However, what cannot be disputed is that had
[Appellants] made an exhaustive inquiry as to whether
Rita Drive was public or private, they would have been
reliably put on notice by these official documents that Rita
Drive was regarded by the Condemnor[, i.e., the
Township,] as a private road.
Appellants’ Response to Application ¶14 (emphasis in original).
These reliable and official sources reasonably supersede
the cryptic and uncorroborated deed reference and vague,
generalized testimony relied upon by the Township.
[Common Pleas] erred in holding [Appellants] to a much
higher standard of what “could reasonably have been
discovered” than it holds the Township with regard to its
own documents. [Appellant] Russell Dysert was a
Township Supervisor when the Comprehensive Plan was
adopted in 2012 and the Township has not modified the
Comprehensive Plan since. [Appellants] reasonably relied
or could have reasonably relied upon the well-vetted, and
formally adopted Comprehensive Plan which expressly
represents that Rita Drive is a private road. [Appellants]
would have been foolish to disregard the official maps of
the Township in favor of an indeterminate, inconsistent
of the fact to be noticed. If the court takes judicial notice before
notifying a party, the party, on request, is still entitled to be heard.
(f) Instructing the Jury. The court must instruct the jury that it may,
but is not required to, accept as conclusive any fact judicially
noticed.
Pa. R.E. 201.
10
deed reference and, therefore, any finding to the contrary
that [Appellants] exercised reasonable diligence is an error
of law.
Appellants’ Br. at 48 (emphasis in original).
In doing so, however, Appellants misperceive both the limited scope of our
appellate standard of review and our ability to take judicial notice of the challenged
appendices. Section 504(d) of the Eminent Domain Code provides the following
direction regarding how a court of common pleas must handle preliminary
objections to a petition to appoint a board of viewers:
(1) Any objection to the appointment of viewers may be
raised by preliminary objections filed within 30 days after
receipt of notice of the appointment of viewers.
(2) Objections to the form of the petition or the
appointment or the qualifications of the viewers in any
proceeding or to the legal sufficiency or factual basis of a
petition filed under section 502(c) (relating to petition for
appointment of viewers) are waived unless included in
preliminary objections.
(3) An answer with or without new matter may be filed
within 20 days of service of preliminary objections, and a
reply to new matter may be filed within 20 days of service
of the answer.
(4) The court shall determine promptly all preliminary
objections and make any orders and decrees as justice
requires.
(5) If an issue of fact is raised, the court shall conduct an
evidentiary hearing or order that evidence be taken by
deposition or otherwise, but in no event shall evidence be
taken by the viewers on this issue.
26 Pa. C.S. § 504(d). The courts of common pleas are thus the factfinders regarding
preliminary objections to such petitions; it follows, then that “[q]uestions of
credibility and conflicts in the evidence presented [in these matters] are for the [court
of common pleas] to resolve.” Denes v. Pa. Tpk. Comm’n, 689 A.2d 219, 222 (Pa.
11
1997). “Appellate review in an eminent domain case is limited to a determination of
whether the trial court abused its discretion or committed an error of law, and
whether the findings of fact are supported by substantial evidence.” Id. “Substantial
evidence is such relevant evidence as a reasonable person would consider adequate
to support a finding.” Bouch v. State Ethics Comm’n, 848 A.2d 1078, 1080 (Pa.
Cmwlth. 2004). “If sufficient evidence supports the trial court’s findings as
factfinder, they should not be disturbed.” Denes, 689 A.2d at 222. More generally,
[a]n appellate court is limited to considering only those
facts that have been duly certified in the record on appeal.
City of Pittsburgh [Comm’n] on [Hum. Rels.] v. DeFelice,
782 A.2d 586, 593 n. 10 (Pa. Cmwlth. 2001). For purposes
of appellate review, that which is not part of the certified
record does not exist. Id. Documents attached to a brief as
an appendix or reproduced record may not be considered
by an appellate court when they are not part of the certified
record. Stabler Dev[.] Co[.] v. [Bd.] of Supervisors of
Lower Mt. Bethel [Twp.], 695 A.2d 882, 887 n. 5 (Pa.
Cmwlth. 1997) . . . . “[I]t is the responsibility of the
appellant to supply this Court with a complete record for
purposes of review. The failure by an appellant to insure
that the original record certified for appeal contains
sufficient information to conduct a proper review
constitutes waiver of the issue(s) sought to be examined.”
Salameh v. Spossey, 731 A.2d 649, 658 (Pa. Cmwlth.
[1999]) . . . (citation omitted).
B.K. v. Dep’t of Pub. Welfare, 36 A.3d 649, 657 (Pa. Cmwlth. 2012).
Appellants’ judicial notice request is thus problematic for two reasons. First,
they offer no explanation as to why they did not ask Common Pleas to take judicial
notice of the Comprehensive Plan and Resolution or the Liquid Fuels Map, or why
they did not seek to add these items to the record below via agreement with the
Township or through leave from Common Pleas. See Thomas v. Grimm, 155 A.3d
128, 134 (Pa. Cmwlth. 2017) (appellate court cannot take judicial notice of facts in
12
document that is not in the record if appellant could have, but did not, ask trial court
to take such notice). Second, by seeking judicial notice at this stage, Appellants
effectively ask us to add those items to the record from below, reweigh the combined
materials, and make factual findings of our own regarding when they could have
reasonably discovered the Township’s de facto taking of Rita Drive. To accede to
that request would undoubtedly contravene our aforementioned standard of review
and improperly discard a portion of Common Pleas’ factual determinations.
Consequently, we grant the Application and strike Appendix B and Appendix C
from Appellants’ Brief, as well as all references thereto in the body of Appellants’
Brief itself.
B. Appeal
With that resolved, we now turn to the remaining arguments raised by
Appellants, which we restate as follows. First, Common Pleas’ determination that
Rita Drive has been a public road since 1974 is not supported by substantial
evidence. Appellants’ Br. at 22-37.6 Second, Common Pleas’ determination that the
6
The Township argues that Appellants are collaterally estopped by virtue of Common
Pleas’ adjudication of the Declaratory Judgment Action, as well as admissions made by
Appellants’ counsel in that matter, from arguing in this case that Rita Drive was not a public road
as of 1974. See Township’s Br. at 17-20.
Collateral estoppel or issue preclusion prohibits the re-litigation of
questions of law or issues of fact that have already been litigated and
determined by a final judgment. . . . Collateral estoppel prohibits re-
litigation where: (1) the legal or factual issues are identical; (2) they
were actually litigated; (3) they were essential to the judgment; and
(4) they were material to the adjudication. A prerequisite to the
application of collateral estoppel is that the prior decision asserted
to have preclusive effect must be a final judgment.
Duvall v. Dep’t of Corr., 926 A.2d 1220, 1224 (Pa. Cmwlth. 2007) (internal citations omitted).
This argument, however, misapprehends the effect of the Declaratory Judgment Action, as well as
the substance of counsel’s admissions. With regard to the first issue, we can come up with no better
(Footnote continued on next page…)
13
language used in Appellants’ deeds should have put them on notice that Rita Drive
was considered a public road is not supported by substantial evidence. Id. at 48-53.
Finally, Appellants could not have discovered through reasonable diligence that the
Township’s de facto taking by prescription was of a 33-foot-wide swath of property
along Rita Drive, as the portions of that road that were heretofore owned by
Appellants are 11-feet-wide and there is no evidence that the Township ever
maintained or improved the remaining width. Id. at 53-55.
With regard to the first issue, the standard for determining whether a road has
been made public under the Township Code has been established through both
statute and case law. Per Section 2307 of the Township Code,
(a) Every road which has been used for public travel and
maintained and kept in repair by the township for a period
of at least twenty-one years is a public road having a right-
of-way of thirty-three feet even though there is no public
record of the laying out or dedication for public use of the
road.
explanation for why collateral estoppel does not apply than how the Township itself described the
situation to Common Pleas in its Response to Appellants’ Brief on Issues to be Decided on
Remand:
[Common Pleas] has already decided that Rita Drive is a public road
pursuant to Section 2307 [of the Township Code] through its order
in the Declaratory [Judgment] Action. Post-trial motions were
withdrawn by [Appellants] and that decision was not appealed.
Therefore, for purposes of this eminent domain proceeding, there
has been a final judgment . . . on the issue that Rita Drive is a public
road[.] . . . It is now for [Common Pleas] to determine when the
period of public use and maintenance of Rita Drive began.
R.R. at 864a. Thus, the question that is before us (and was before Common Pleas), regarding the
statute of limitations, is different from that which was answered through the Declaratory Judgment
Action. As to the second issue, Appellants’ counsel admitted that Rita Drive was a public road,
but never admitted to when it attained that status. See R.R. at 273a-92a. Those admissions
consequently have no preclusive effect upon Appellants’ ability to dispute when exactly the statute
of limitations began to run.
14
(b) In any proceeding pursuant to this section, any relevant
oral or documentary evidence of public travel or
maintenance and repairs by the township shall, if
presented, be considered, including, but not limited to:
(i) Maps or surveys which are either generated by
any governmental unit or are created pursuant to
any judicial proceeding of the courts of this
Commonwealth.
(ii) Evidence concerning the distribution of
government funds to the township pursuant to the
act of June 1, 1956 (1955 P.L. 1944, No. 655), [as
amended, 72 P.S. §§ 2615.1-2615.10,] referred to as
the “Liquid Fuels Tax Municipal Allocation Law.”
(iii) Approved subdivision plans, deeds or other
documents containing a designation of the road as
either a township road or otherwise.
(iv) Evidence that the road is an extension from a
public road or public cul-de-sac, a throughway
between other municipal or State roads or provides
the only access to a municipal boundary line.
(v) Court orders, decisions, findings of fact or other
matters of judicial record relating to public or
private rights in the road.
(c) For purposes of this section:
(i) The frequency of use of a road may be
considered relevant in any proceeding pursuant to
this section, but, in the absence of additional
findings on the purpose of such use, shall not alone
be sufficient to establish that the road has been used
for public travel.
(ii) The condition or sufficiency of the road surface
for public travel may be considered relevant in any
proceeding pursuant to this section, but, absent
additional findings of actual public maintenance
and repair, shall not alone be sufficient to establish
maintenance and repair by the township.
(d) Nothing in this section shall be construed as affecting
the weight or persuasiveness of any evidence presented in
accordance with subsection (b) or the relevance of any
15
evidence presented except as otherwise provided in this
section.
(e) In any proceeding in which this section is relied upon
to allege the existence of a public road, the proponent of
the public status of the road shall present evidence first,
and the burden shall then shift to the opponent to present
evidence to refute the public status of the road.
53 P.S. § 67307. Thus, by statute, a road can only become public where there is
evidence that, for at least 21 years, it has been maintained by the municipality in
which it is situated and has been used for travel by the general public. Id. Beyond
these statutory parameters, we have elaborated via case law about what constitutes
the level of public use necessary to allow for a road to be deemed public.
Although public use does not mean use by every member
of the community, it is not made out by use of a road
merely by those having business with the establishments
to which the road provides access. [Se. Pa. Transp. Auth.
v. Pa.] Public Util[.] Comm[’n], 505 A.2d 1046, 1049 (Pa.
Cmwlth. 1986). Moreover, “[t]he use must be by the
public in general, as against a limited segment of the
public.” Id. (citation omitted). “[T]he evidence need not
show a constant use in order to establish continuity; rather,
continuity is established if the evidence shows a settled
course of conduct indicating an attitude of mind on the part
of the user or users that the use is the exercise of a property
right.” Minteer [v. Wolfe], 446 A.2d[ 316,] 319 [(Pa.
Super. 1982)] (quoting Keefer v. Jones, . . . 359 A.2d 735,
737 ([Pa.] 1976)).
In Re Petition for Appointment of Bd. of Viewers, 149 A.3d 911, 915 (Pa. Cmwlth.
2016).
For the first prong of this test, Common Pleas’ determination that the
Township maintained Rita Drive continuously from 1974 onwards is supported by
substantial evidence. As noted above, Common Pleas found Gerald Runtas to be
credible with regard to his testimony on this point. In relevant part, Runtas stated
that he was a Township supervisor between 1974 and 2010, during which time he
16
supervised and was involved in road maintenance throughout his municipality,
including repair projects and snow plowing. Runtas attested to the fact that, during
the entirety of his time as a supervisor, he and his crews did such maintenance on
Rita Drive because, in his opinion, it was a public road. See R.R. at 437a-47a. Given
the thoroughness of Runtas’ testimony, we conclude that Common Pleas did not
abuse its discretion by ruling that the Township began continuously maintaining Rita
Drive starting in 1974.
Similarly, regarding the second prong of the test, Common Pleas’
determination that the public has used Rita Drive from 1974 onwards is supported
by substantial evidence. During the course of his testimony, Runtas recounted that
he had seen delivery trucks, garbage trucks, utility trucks, and private vehicles
travelling along Rita Drive over the years. See id. at 447a-49a. His testimony
provides sufficient grounds for a conclusion that the public’s use of Rita Drive
occurred through the same time period as the continual governmental maintenance
of the roadway. Accordingly, we conclude that Common Pleas did not abuse its
discretion by determining that the public began regularly using Rita Drive in 1974.
In addition, we find no merit in Appellants’ assertion that their property deeds’
language did not put them on notice regarding Rita Drive’s status. Generally
speaking, “a grantee is chargeable with notice of everything affecting his title which
could be discovered by an examination of the records of the deeds or other
muniments of title of his grantor.” Piper v. Mowris, 351 A.2d 635, 639 (Pa. 1976)
(quoting Finley v. Glenn, 154 A. 299, 301 (Pa. 1931)). It follows, then, that deed
language referencing the fact that Rita Drive was considered to be a public road
would therefore be sufficient enough to put Appellants on notice and preclude the
tolling of the statute of limitations for filing their Petition. Both the Dyserts’ and the
17
Macklins’ respective deeds include descriptive information regarding the roads
bounding their properties that, in context, refer to Rita Drive as a public road. See
R.R. at 565a-72a, 744a-47a. Therefore, even if we assume that the running of the
statute of limitations was tolled in some way by Appellants’ purchase of their
properties, we discern no error regarding Common Pleas’ determination that they
were put on notice regarding Rita Drive’s status as a public road in 1997 and 1998,
i.e., when they secured their respective property deeds.
Finally, we are unpersuaded by Appellants’ argument that they could not have
discovered the scope of the Township’s taking by exercising reasonable diligence.
This is because Section 2307’s operative language regarding the 33-foot width of
roads made public in this manner has been in legal effect since 1933, when its
predecessor statute was enacted as part of the original version of the Township Code.
See Fritchey v. Com., 200 A. 622, 623 (Pa. 1938) (discussing Section 1105 of the
Act of May 1, 1933, P.L. 103, formerly 53 P.S. § 19093-1105, deleted by the Act of
November 9, 1995, P.L. 350). As our Supreme Court remarked nearly two centuries
ago,
[i]t is an unquestionable principle, which applies to civil
as well as criminal cases, that ignorance of law will not
furnish an excuse for any person, either for a breach or
omission of duty. Ignorantia legis neminem excusat is a
maxim which is as much respected in equity as in law. This
doctrine is among the settled elements of the law; for every
man, at his peril, is bound to take notice of what the law
is, as well the law made by statute as the common law[.] .
. . The presumption is, that every man is acquainted with
his own rights, provided he has a reasonable opportunity
to know them. And nothing can be more liable to abuse
than to permit a person to reclaim his property upon the
mere preten[s]e that . . . he was ignorant of the law acting
on his title[.]
18
Rankin v. Mortimere, 7 Watts 372, 374 (Pa. 1838). Therefore, given that the Dyserts
and Macklins were on notice no later than 1997 and 1998, respectively, regarding
Rita Drive’s status as a public road, their ignorance regarding Section 2307 does not
render this statute somehow inapplicable to their situation or mean that Appellants
could not have discovered its effect through the exercise of reasonable diligence.
III. Conclusion
Accordingly, we grant the Township’s Application and affirm Common
Pleas’ December 22, 2020 order.
__________________________________
ELLEN CEISLER, Judge
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Russell D. Dysert, Karen K. Dysert, :
Joseph Klick, Jayne Klick, Michael :
Macklin and Lori Macklin :
:
v. : No. 38 C.D. 2021
:
Robinson Township, Washington :
County :
:
Appeal of: Russell D. Dysert, Karen :
K. Dysert, Michael Macklin and Lori :
Macklin :
ORDER
AND NOW, this 22nd day of December, 2021, it is hereby ORDERED:
1. Appellee Robinson Township, Washington County’s (Township) application
to strike Appendix B and Appendix C from the Brief filed by Appellants
Russell D. Dysert, Karen K. Dysert, Michael Macklin, and Lori Macklin, as
well as all references thereto in that Brief, is GRANTED;
2. The Court of Common Pleas of Washington County’s (Common Pleas)
December 22, 2020 order is AFFIRMED.
__________________________________
ELLEN CEISLER, Judge